United States v. Nicholas Anthony Moccia, 681 F.2d 61 (1st Cir. 1982). · Go Syfert
United States v. Nicholas Anthony Moccia, 681 F.2d 61 (1st Cir. 1982). Cases Citing This Book View Copy Cite
“here was so much other evidence of guilt in the case that it is difficult to believe the prior conviction was needed.”
195 citation events (69 in the last 25 years) across 42 distinct courts.
Strongest positive: United States v. Ford (ca1, 2016-10-14)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) United States v. Ford
1st Cir. · 2016 · signal: cf. · quote attribution · 1 verbatim quote · confidence high
here was so much other evidence of guilt in the case that it is difficult to believe the prior conviction was needed.
examined Cited as authority (verbatim quote) United States v. Doherty (3×) also: Cited as authority (rule)
D. Mass. · 1987 · signal: see · quote attribution · 1 verbatim quote · confidence high
wjhere the evidence has some 'special' probative value ... it 'may' be admitted
cited Cited as authority (rule) Juan B. Rodriguez, s/k/a Juan Bautista Rodriguez v. Commonwealth of Virginia
Va. Ct. App. · 2025 · confidence medium
Old Chief v. United States, 519 U.S. 172, 181 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)).
discussed Cited as authority (rule) United States v. Vazquez
D.D.C. · 2023 · confidence medium
Rule 404(b) thus attempts to head off the risk that, presented with such evidence of a defendant’s uncharged bad conduct, “a jury [might] convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment.” Old Chief v. United States, 519 U.S. 172, 181 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)).
cited Cited as authority (rule) State of West Virginia v. Tremaine Lamar Jackson
W. Va. · 2023 · confidence medium
Ed. 2d 574 (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)).
discussed Cited as authority (rule) Gonzalez-Tomasini v. Brennan
D.P.R. · 2022 · confidence medium
For example, the Court of Appeals for the First Circuit has declared that courts should be cautious in admitting evidence regarding a “shocking or heinous crime likely to inflame the jury.” Id. (citing United States v. Moccia, 681 F.2d 61, 64 (1st Cir. 1982)).
discussed Cited as authority (rule) Gonzalez-Tomasini v. Brennan
D.P.R. · 2022 · confidence medium
For example, the Court of Appeals for the First Circuit has declared that courts should be cautious in admitting evidence regarding a “shocking or heinous crime likely to inflame the jury.” Varoudakis, 233 F.3d at 122 (citing United States v. Moccia, 681 F.2d 61, 64 (1st Cir. 1982)). 1.
discussed Cited as authority (rule) Gonpo v. Sonam's Stonewalls & Art, LLC
1st Cir. · 2022 · confidence medium
Recognizing this possibility, "we have upheld the exclusion of prior bad act evidence in part because it was 'undeniably explosive,'" or "is a 'shocking or heinous crime likely to inflame the jury.'" United States v. Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000) (first quoting Gilbert, 229 F.3d at 26 ; then quoting United States v. Moccia, 681 F.2d 61, 64 (1st Cir. 1982)).
discussed Cited as authority (rule) State of Missouri v. Daviune C. Minor
Mo. · 2022 · confidence medium
State v. Reese, 274 S.W.2d 304, 307 (Mo. banc 1954); State v. Sladek, 835 S.W.2d 308, 311 (Mo. banc 1992); State v. Williams, 548 S.W.3d 275, 281 (Mo. banc 2018) (“[I]t is safe to say a general prohibition against the use of propensity evidence in criminal cases has been firmly engrained in American jurisprudence throughout much of the nation’s history.”); Old Chief v. United States, 519 U.S. 172, 181 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982) (“Although ... ‘propensity evidence’ is relevant, the risk that a jury will convict for crimes other than thos…
discussed Cited as authority (rule) State v. Crossguns
Wash. · 2022 · confidence medium
Indeed, courts have long recognized the risk that evidence suggesting a defendant has a criminal propensity will lead the jury to conclude that the person most likely committed the charged crime: 5 United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982) (noting that these risks create “a prejudicial effect that outweighs ordinary relevance”). 9 No. 99396-3 (Gordon McCloud, J., dissenting) It would be easier to believe a person guilty of one crime if it was known that he had committed another of a similar character, or, indeed, of any character; but the injustice of such a rule in courts o…
discussed Cited as authority (rule) United States v. Garcia-Sierra
1st Cir. · 2021 · confidence medium
Rule 404(b)(1) states that "[e]vidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person - 15 - acted in accordance with the character." Thus, Rule 404(b)(1) prohibits a particular inference one might draw from such evidence: it "forbid[s] the prosecution from asking the jury to infer from the fact that the defendant has committed a bad act in the past, that he has a bad character and therefore is more likely to have committed the bad act now charged." United States v. Moccia, 681 F.2d 61, 63 (1st Cir. …
discussed Cited as authority (rule) United States v. Oseguera Gonzalez
D.D.C. · 2020 · confidence medium
Rule 404(b) thus attempts to head off the risk that, presented with such evidence of a defendant’s uncharged bad conduct, “a jury [might] convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment.” Old Chief 7 v. United States, 519 U.S. 172, 181 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)).
discussed Cited as authority (rule) United States v. Scott Wombold
6th Cir. · 2020 · confidence medium
The rules exclude evidence of character because “the risk that a jury will convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment—creates a prejudicial effect that outweighs ordinary relevance.” Old Chief, 519 U.S. at 180–82 (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)). 8 The transcripts were provided by the court.
discussed Cited as authority (rule) United States v. Scott Wombold
6th Cir. · 2020 · confidence medium
The rules exclude evidence of character because “the risk that a jury will convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment—creates a prejudicial effect that outweighs ordinary relevance.” Old Chief, 519 U.S. at 180–82 (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)). 8The transcripts were provided by the court.
discussed Cited as authority (rule) United States v. Smith
D.D.C. · 2020 · confidence medium
Rule 404(b) thus attempts to head off the risk that, presented with such evidence of a defendant’s uncharged bad conduct, “a jury [might] convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment.” Old Chief v. United States, 519 U.S. 172, 181 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)).
discussed Cited as authority (rule) United States v. Hutchings
D.D.C. · 2020 · confidence medium
Rule 404(b) thus attempts to head off the risk that, presented with such evidence of a defendant’s uncharged bad conduct, “a jury [might] convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment.” Old Chief v. United States, 519 U.S. 172, 181 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)).
discussed Cited as authority (rule) State v. Thompson
Ohio Ct. App. · 2020 · confidence medium
Introducing evidence of a defendant’s previous “bad acts,” or, in this case, alleged bad acts, planted the nefarious seed that appellant committed the bad act with which he was charged. “‘Although * * * “propensity evidence” is relevant, the risk that a jury will convict for crimes other than those charged – or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment – creates a prejudicial effect that outweighs ordinary relevance.’” Old Chief, supra, at 181 , quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982).
discussed Cited as authority (rule) United States v. Thorne
D.D.C. · 2020 · confidence medium
Such “propensity evidence is relevant,” but “the risk that a jury will convict for crimes other than those charged — or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment — creates a prejudicial effect that outweighs ordinary relevance.” Old Chief v. United States, 519 U.S. 172, 181 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)). “[S]o long as the evidence is not offered solely to prove character,” however, “any purpose for which bad-acts evidence is introduced is a proper” purpose under Rule 404(b).
discussed Cited as authority (rule) Stanfield v. State
Idaho · 2019 · confidence medium
See Oregon v. Horsley, 8 P.3d 1021 (2000); Washington v. Labanowski, 816 P.2d 26, 36 (1991); United States v. Moccia, 681 F.2d 61, 64 (1st Cir. 1982) (the well-established rule of requiring unanimity on the greater offense does not violate due process); Pharr v. Israel, 629 F.2d 1278, 1282 (7th Cir. 1980) (“acquittal first” instruction does not violate either due process or the right to trial by jury); Arizona v. Lee, 944 P.2d 1204, 1216 (1997) (“acquittal first” requirement does not violate the United States or Arizona Constitutions).
cited Cited as authority (rule) United States v. Vazquez-Soto
1st Cir. · 2019 · confidence medium
United States v. Moccia, 681 F.2d 61, 64 (1st Cir. 1982).
discussed Cited as authority (rule) HUBBARD (CORY) VS. STATE (2×)
Nev. · 2018 · confidence medium
As recognized in Old Chief "[a] lthough "propensity evidence" is relevant, the risk that a jury will convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment—creates a prejudicial effect that outweighs ordinary relevance." Id. at 181 (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)).
discussed Cited as authority (rule) HUBBARD (CORY) VS. STATE (2×)
Nev. · 2018 · confidence medium
As recognized in Old Chief "[a] lthough "propensity evidence" is relevant, the risk that a jury will convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment—creates a prejudicial effect that outweighs ordinary relevance." Id. at 181 (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)).
discussed Cited as authority (rule) State of Minnesota v. Joseph Bullhead
Minn. Ct. App. · 2016 · confidence medium
“Although . . . ‘propensity evidence’ is relevant, the risk that a jury will convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment—creates a prejudicial effect that outweighs ordinary relevance.” Id. at 181 , 117 S. Ct. at 650 (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir., 1982)).
cited Cited as authority (rule) United States v. Ivan Lee
3rd Cir. · 2015 · confidence medium
Id. at 181 , 117 S.Ct. 644 (alterations in original) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982)). 20 .
discussed Cited as authority (rule) State of Tennesse v. Jonathan Mitchell Grimes-Concurring In Part, Dissenting In Part
Tenn. Crim. App. · 2015 · confidence medium
“Propensity evidence may lead a jury to convict, not because they are certain the defendant is guilty of the charged crime, but because they have determined the defendant is „a bad person who deserves punishment‟ whether or not the crime was proven beyond a reasonable doubt.” State v. Clark, 452 S.W.3d 268, 289 (Tenn. 2014) (citing Rodriguez, 254 S.W.3d at 375 ; Old Chief v. United States, 519 U.S. 172, 181 (1997); United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982); United States v. Curtin, 489 F.3d 935, 944 (9th Cir. 2007) (en banc)).
discussed Cited as authority (rule) State v. Brown
Mo. Ct. App. · 2014 · confidence medium
“Although ... ‘propensity evidence’ is relevant, the risk that a jury will convict for crimes other than those charged — or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment — creates a prejudicial effect that outweighs ordinary relevance.” Id. at 181 , 117 S.Ct. 644 (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982)).
discussed Cited as authority (rule) State of Tennessee v. Fred Chad Clark, II
Tenn. · 2014 · confidence medium
State v. Rodriguez, 254 S.W.3d at 375 ; Old Chief v. United States, 519 U.S. 172, 181 , 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982)); see also United States v. Curtin, 489 F.3d 935, 944 (9th Cir.2007) (en banc).
discussed Cited as authority (rule) State of Tennessee v. Henry Lee Jones
Tenn. · 2014 · confidence medium
In Old Chief v. United States, the United States Supreme Court pointed out that “ ‘the risk that a jury will convict for crimes other than those charged — or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment — creates a prejudicial effect that outweighs ordinary relevance.’ ” 519 U.S. 172, 181 , 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982)); see also Michelson v. United States, 335 U.S. 469, 475-76 , 69 S.Ct. 213 , 93 L.Ed. 168 (1948).
discussed Cited as authority (rule) State of Tennessee v. Hubert Glenn Sexton
Tenn. · 2012 · confidence medium
In Old Chief v. United States, 519 U.S. 172, 181 , 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997), the United States Supreme Court pointed out that “ ‘the risk that a jury will convict for crimes other than those charged — or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment — creates a prejudicial effect that outweighs ordinary relevance.’ ” (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982)); see also Michelson v. United States, 335 U.S. 469, 475-76 , 69 S.Ct. 213 , 93 L.Ed. 168 (1948).
discussed Cited as authority (rule) State v. Alonzo
Conn. App. Ct. · 2011 · confidence medium
See also United States v. Harvey, 701 F.2d 800, 806 (9th Cir. 1983) (finding no error with acquittal first instruction), overruled on other grounds by United States v. Chapel, 55 F.3d 1416, 1417 (9th Cir. 1995); United States v. Moccia, 681 F.2d 61, 64 (1st Cir. 1982) (referring to acquittal first jury instruction as “well-established”); State v. Goodwin, 278 Neb. 945, 965-66 , 774 N.W.2d 733 (2009) (concluding that acquittal first instructions are not constitutionally deficient); People v. Boettcher, 69 N.Y.2d 174, 183 , 505 N.E.2d 594 , 513 N.Y.S.2d 83 (1987) (concluding that court’s a…
discussed Cited as authority (rule) State v. Lawrence
La. Ct. App. · 2010 · confidence medium
The risks of such evidence are aptly described by the United States Supreme Court in Old Chief: “Although ... ‘propensity evidence’ is relevant, the risk that a jury will convict for crimes other than those charged — or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment — creates a prejudicial effect that outweighs ordinary relevance.” Old Chief v. United States, 519 U.S. 172, 181, 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997) (quoting then-Judge Breyer in United States v. Moccia, 681 F.2d 61, 63 (C.A.1 1982)).
discussed Cited as authority (rule) United States v. Hicks (2×) also: Cited "see"
1st Cir. · 2009 · confidence medium
“While logically rele *142 vant, ‘propensity’ or ‘bad character’ evidence is deemed to carry an unacceptable risk that the jury will convict the defendant for crimes other than those charged,” id., or simply because “a bad person deserves punishment,” United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982).
discussed Cited as authority (rule) Government of the Virgin Islands v. Donovan (2×)
3rd Cir. · 2009 · confidence medium
While such evidence may in fact be highly relevant, it is generally barred because of the “ ‘risk that a jury will convict for crimes other than those charged — or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment.’ ” Old Chief v. United States, 519 U.S. 172, 181 , 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982)).
discussed Cited as authority (rule) United States v. McFall
9th Cir. · 2009 · confidence medium
Character evidence is generally inadmissible to prove conduct in conformity therewith — even where relevant — because of the danger that a jury “uncertain of guilt [ ] will convict anyway because a bad person deserves punishment....” Old Chief v. United States, 519 U.S. 172, 181 , 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982)).
discussed Cited as authority (rule) United States v. McFall
9th Cir. · 2009 · confidence medium
Character evidence is generally inadmissible to prove conduct in conformity therewith — even where relevant — because of the danger that a jury “uncertain of guilt [ ] will convict anyway because a bad person deserves punishment....” Old Chief v. United States, 519 U.S. 172, 181 , 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982)).
discussed Cited as authority (rule) United States v. Foster, James
D.C. Cir. · 2009 · confidence medium
While Quigley testified only that she “knew [Foster] from the previous buy” and not that he had participated in the buy, Tr. 11/12/03am at 56, the testimony created a risk that the jury would convict Foster of a crime other than that charged, “ ‘or that, uncertain of guilt, it w[ould] convict anyway because a bad person deserves punishment.’ ” Old Chief v. United States, 519 U.S. 172, 181 , 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982)).
discussed Cited as authority (rule) State v. Rodriguez
Tenn. · 2008 · confidence medium
However, as noted by the United States Supreme Court, “[although ‘propensity evidence’ is relevant, the risk that a jury will convict for crimes other than those charged — or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment — creates a prejudicial effect that outweighs ordinary relevance.” Old Chief v. United States, 519 U.S. 172, 181 , 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982)).
cited Cited as authority (rule) State Of Iowa Vs. Raymond Reyes
Iowa · 2008 · confidence medium
Ed. 2d 574, 588 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (lst Cir. 1982)).
discussed Cited as authority (rule) State v. Reyes
Iowa · 2008 · confidence medium
In settings involving prior sexual abuse with persons other than the alleged victim, there is a substantial risk that " 'a jury will convict for crimes other than those charged-or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment....' ” Old Chief v. United States, 519 U.S. 172, 181 , 117 S.Ct. 644, 650 , 136 L.Ed.2d 574, 588 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982)).
discussed Cited as authority (rule) United States v. Robert Simpson (2×)
7th Cir. · 2007 · confidence medium
As then-Judge Breyer put it, “Although ... ‘propensity evidence’ is relevant, the risk that a jury will convict for crimes other than those charged — or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment — creates a prejudicial effect that outweighs ordinary relevance.” United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982); see also Michelson v. United States, 335 U.S. 469, 475-76 , 69 S.Ct. 213 , 93 L.Ed. 168 (1948); United States v. Seals, 419 F.3d 600, 610-11 (7th Cir.2005) (Posner, J., concurring). a.
discussed Cited as authority (rule) United States v. Simpson, Robert
7th Cir. · 2007 · confidence medium
As then- Judge Breyer put it, “Although . . . ‘propensity evidence’ is relevant, the risk that a jury will convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves 8 No. 05-2993 punishment—creates a prejudicial effect that outweighs ordinary relevance.” United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982); see also Michelson v. United States, 335 U.S. 469, 475-76 (1948); United States v. Seals, 419 F.3d 600, 610-11 (7th Cir. 2005) (Posner, J., concurring). a.
discussed Cited as authority (rule) Smith v. Baldwin (2×)
9th Cir. · 2006 · confidence medium
Old Chief, however, describes “bad act” evidence as “rele- vant,” “logically . . . persuasive,” and “probative.” 519 U.S. at 180 -81 (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982) (Breyer, J.); Michelson v. United States, 335 U.S. 469, 475-76 (1948)).
discussed Cited as authority (rule) McCoy v. State (2×)
Ark. · 2003 · confidence medium
Somewhat more recently in United States v. Moccia, 681 F.2d 61, 63 (1 st Cir.1982), the First Circuit Court of Appeals stated: Although ... `propensity evidence' is relevant, the risk that a jury will convict for crimes other than those charged ... or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment ... creates a prejudicial effect that outweighs ordinary relevance.
cited Cited as authority (rule) United States v. Varoudakis
1st Cir. · 2000 · confidence medium
We are also cautious when the prior act is a “shocking or heinous crime likely to inflame the jury.” United States v. Moccia, 681 F.2d 61, 64 (1st Cir.1982).
discussed Cited as authority (rule) United States v. Smith, Antonione
D.C. Cir. · 2000 · confidence medium
To the contrary, both “propensity” rules and the rule restricting the admission of extrinsic credibility evidence embody specific concerns that, although relevant, evidence of prior acts will either unduly prejudice and over-persuade the jury, see Old Chief v. United States, 519 U.S. 172, 181 , 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982)), or waste time by sanctioning countless distinct credibility mini-trials within the trial proper, see Fed.R.Evid. 405 advisory committee’s note; Fed.R.Evid. 608(b) advisory committee’s note.
discussed Cited as authority (rule) State Ex Rel. Romley v. Galati (2×)
Ariz. Ct. App. · 1999 · confidence medium
The Court noted that the name and nature of the prior conviction might lead the jury to convict on the general notion that "a bad person deserves punishment." Id. at 181 , 117 S.Ct. 644 (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982)).
discussed Cited as authority (rule) United States v. Ronald Haukaas
8th Cir. · 1999 · confidence medium
The Supreme Court has stated, “Although . . . ‘propensity evidence’ is relevant, the risk that a jury will convict for crimes other than those charged--or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment--creates a prejudicial effect that outweighs ordinary relevance.” Old Chief v. United States, 519 U.S. 172, 181 (1997) (quoting U.S. v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)).
discussed Cited as authority (rule) United States v. Ronald R. Haukaas, III (2×)
8th Cir. · 1999 · confidence medium
The Supreme Court has stated, "Although ... 'propensity evidence' is relevant, the risk that a jury will convict for crimes other than those charged--or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment--creates a prejudicial effect that outweighs ordinary relevance." Old Chief v. United States, 519 U.S. 172, 181 , 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997) (quoting U.S. v. Moccia, 681 F.2d 61, 63 (1st Cir.1982)).
discussed Cited as authority (rule) People v. Crawford
Mich. · 1998 · confidence medium
Thus, they escape the absolute bar of the Rules first sentence. [ United States v. Moccia, 681 F.2d 61, 63 (C.A.1, 1982).] Similarly, in United States v. Nickens, 955 F.2d 112, 124 (C.A.1, 1992), the defendant, allegedly a respectable citizen traveling for recreational and medical reasons, claimed to be an innocent bystander duped by two young men who had offered to help him when he had difficulty on a trip to Ecuador.
discussed Cited as authority (rule) United States v. Crowder, Rochelle A. (2×)
D.C. Cir. · 1998 · confidence medium
Elaborating further in Old Chief, the Court said that " '[a]lthough ... "propensity evidence" is relevant, the risk that a jury will convict for crimes other than those charged--or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment--creates a prejudicial effect that outweighs ordinary relevance.' " Old Chief, 519 U.S. at ----, 117 S.Ct. at 650 (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982) (Breyer, J.)).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Nicholas Anthony MOCCIA, Defendant, Appellant
81-1532.
Court of Appeals for the First Circuit.
Jun 16, 1982.
681 F.2d 61
John A. Macoul, Lawrence, Mass., by appointment of the Court, for appellant., Helen J. Forsyth, Asst. U. S. Atty., Concord, N. H., with whom W. Stephen Thayer, III, U. S. Atty., Concord, N. H., was on brief, for appellee.
Bownes, Breyer, Campbell.
Cited by 146 opinions  |  Published
BREYER, Circuit Judge.

Defendant/appellant Nicholas Moccia was convicted of possessing two drugs— marijuana and diethylpropion — with intent to distribute. 21 U.S.C. §§ 812 (Schedule I(c)(10)), 841; 21 C.F.R. § 1308.14(e)(1) (1981). He was sentenced under the “Dangerous Special Drug Offender” statute, 21 U.S.C. § 849, to two concurrent fifteen-year terms. He attacks his conviction and sentence on several grounds. In our view, both must stand.

1. Defendant’s first claim is that the trial court erred in allowing the Government to tell the jury that he had previously been convicted in state court for possession of marijuana. The relevant federal rule of evidence is 404(b), which states,

[*63] Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

This rule codifies the common law doctrine forbidding the prosecution from asking the jury to infer from the fact that the defendant has committed a bad act in the past, that he has a bad character and therefore is more likely to have committed the bad act now charged. Although this “propensity evidence" is relevant, the risk that a jury will convict for crimes other than those charged — or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment — creates a prejudicial effect that outweighs ordinary relevance. 2 Weinstein’s Evidence ¶ 404[04] at 404-26 (1980); Note, Procedural Protections of the Criminal Defendant — A Reevaluation of the Privilege Against Self-Incrimination and the Rule Excluding Evidence of Propensity to Commit Crimes, 78 Harv.L.Rev. 426, 436 (1964). Where the evidence has some “special” probative value, however, — where, for example, it is relevant to something other than mere “character” or “propensity,” — it “may” be admitted. The trial judge then must weigh the special relevance against the prejudicial risk, taking into account the likely hostile jury reaction that underlies the common law rule. United States v. Halper, 590 F.2d 422, 432 (2d Cir. 1978); 2 Weinstein’s Evidence §§ 404[08], 404[18]. See also United States v. Byrd, 352 F.2d 570, 574-75 (2d Cir. 1965) (Friendly, J.).

In this case there was a “special” factor making the past conviction more than an effort to produce a “bad character/propensity” chain of inference. Evidence was introduced showing that federal agents had found marijuana and diethylpropion buried under some dog food in the freezer room of the farmhouse where defendant lived with his wife (the owner). Bags of marijuana were also found in the barn under a chicken coop. While defendant offered to stipulate that he knew marijuana and diethylpropion were “controlled” substances, and that whatever he did, he did “knowingly” and “intentionally,” cf. United States v. Mohel, 604 F.2d 748 (2d Cir. 1979), he would not stipulate that he knew the drugs were in the freezer room or under the chicken coop. By introducing the past conviction, the Government thus, in part, sought to have the jury infer that one who lives on a farm with marijuana in the freezer room and under the chicken coop and has a prior possession conviction is more likely to know about the presence of marijuana than one who lives on such a farm and does not have a past possession conviction.

Such an inference would not have been difficult to draw. The jury might have thought a past possessor is more likely to associate with those who use and keep and talk freely about nearby marijuana; it might have thought a past possessor is more likely to spot marijuana under a chicken coop; it might have thought a past possessor is less likely to throw away marijuana if he comes across it. None of these inferences — all supporting a conclusion of “knowledge” — depends entirely upon the “bad character/propensity” chain of reasoning. See United States v. Sinn, 622 F.2d 415, 416 (9th Cir.), cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51 (1980). Cf. United States v. Merryman, 630 F.2d 780, 786 (10th Cir. 1980). But see United States v. Hernandez-Miranda, 601 F.2d 1104, 1108 (9th Cir. 1979). Thus, they escape the absolute bar of the Rule’s first sentence.

The question of balancing relevance and risk is more difficult, but we believe that the trial court acted within its discretion. United States v. Eatherton, 519 F.2d 603, 611 (1st Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975); 2 Weinstein’s Evidence ¶ 404[18] at 404-110 & n.16. On the one hand, the court refused to allow the Government to do more than simply read the prior charge. It instructed the jury to consider the conviction only for its tendency to show knowledge or intent and to ignore whatever light it shed on character or propensity. And the prior conviction[*64] (for possession of “more than one pound” of marijuana) was not for a shocking or heinous crime likely to inflame the jury.

On the other hand, there was so much other evidence of guilt in the case that it is difficult to believe the prior conviction was needed. Drug-related equipment was found in public rooms on the farm. Large amounts of cash were found in the defendant’s room. The defendant and his wife sold the farm and fled from New Hampshire one month before they were initially to be tried (four years ago). And, the defendant had made two highly incriminating admissions: the day of the search he told one of the agents that they should have waited a few days to raid the farm as the Mexican crop had not yet been harvested. The next day he told two deputy marshals (in their words) that the Government

really blew it. I was going to get two tons of marijuana. In fact, I was talking to the guy on the phone when you raided the place.... I really needed the two tons to get out of the hole, . .. but after this, ... I’ll never hear from the guy again.

In the face of this evidence, the defense presented no witnesses.

While all this evidence lessened the need for introducing the prior conviction, it also lessened the likelihood of any prejudicial effect — to the point where, even were we to find the evidence inadmissible (which we do not), the error would have been harmless. See United States v. Bosch, 584 F.2d 1113, 1117-18 (1st Cir. 1978); 2 Weinstein’s Evidence ¶ 404[18] at 404-111 & n.19.

2. Defendant complains of the trial judge’s instruction that the jury not consider any lesser included offenses “until or unless you have arrived at a reasonable doubt on the offenses charged.” Defendant does not complain about the well-established rule that a jury is to consider lesser included offenses only after a determination of “not guilty” is reached on the primary charge. See 2 Devitt & Blackmar, Federal Jury Practice and Instructions § 58.15. Rather, he states that this charge somehow implied that the defendant had the burden of coming forward with evidence that would lead the jury to find a reasonable doubt. He claims the charge implied to the jury that “reasonable doubt” had to be created instead of existing from the outset.

We disagree. At the end of the trial, the judge charged the jury as follows:

Consider ... whether the government has sustained its burden of proving beyond a reasonable doubt each offense of possession with intent to distribute with which [Moccia] is charged.
If you find that such burden has been sustained, that is the end of the case as to him. You will have established his guilt as to such offense or offenses. If, however, you find that a reasonable doubt exists as to either or both of such offenses, you must then turn to the issue of whether he is guilty of the lesser included offenses of possession of controlled substances, and here again must consider whether the government has sustained its burden of proof beyond a reasonable doubt as to each of the elements of those offenses. If it has, then he is guilty of the lesser included offense. If it has not, then you must find him not guilty.

The judge then gave the challenged instruction:

I caution you do not turn to the lesser included offense until or unless you have arrived at a reasonable doubt on the offenses charged, that is, possession with intent to distribute.

Taken as a whole, Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); United States v. Thomann, 609 F.2d 560, 565-66 (1st Cir. 1979), this charge certainly seems adequate as to the burden of proof on “reasonable doubt.” Moreover, the judge properly charged the jury several different times as to “reasonable doubt” and “presumptions of innocence.” We find no violation of “due process” or “fair treatment,” In re Winship, 397 U.S. 358, 359, 90 S.Ct. 1068, 1070, 25 L.Ed.2d 368 (1970), or any other basis for complaint.

[*65] 3. Finally, defendant makes three arguments attacking the “enhanced” fifteen-year concurrent sentences he received as a “dangerous special” drug offender under 21 U.S.C. § 849. First, he claims that at his “enhancement” hearing, the trial judge should not have considered hearsay evidence, evidence derived from “illegal” wiretaps, and evidence not specified in the notice that the statute requires the Government to give prior to trial, 21 U.S.C. § 849(a). The short and conclusive answer to these objections is that the Comprehensive Drug Abuse Prevention and Control Act (of which § 849 is a part) specifically states that,

no limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purposes of imposing an appropriate sentence. ...

21 U.S.C. § 850. This provision codifies the principle that when setting a sentence, a judge can consider a virtually unrestricted range of information, see United States v. Grayson, 438 U.S. 41, 50, 98 S.Ct. 2610, 2615, 57 L.Ed.2d 582 (1978), including hearsay, United States v. Inendino, 604 F.2d 458, 463 (7th Cir.), cert. denied, 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 190 (1979); United States v. Fatico, 603 F.2d 1053 (2d Cir. 1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980), other information that might be inadmissible at trial, United States v. Williamson, 567 F.2d 610, 615 (4th Cir. 1977), and evidence not specified in a § 849(a) pretrial notice. See United States v. Ilacqua, 562 F.2d 399, 403 (6th Cir. 1977), cert. denied, 435 U.S. 906, 917, 947, 98 S.Ct. 1453, 1473, 1532, 55 L.Ed.2d 497, 508, 545 (1978). We see no reason to depart from this rule in the case of wiretap evidence where, as here, attacks on that evidence have been raised and rejected in a prior criminal prosecution in state court.

Second, defendant claims the Government failed to show that he is both “special” and “dangerous” by a “preponderance of the information.” See United States v. Sutton, 415 F.Supp. 1323, 1325-27 (D.D.C.1976); 21 U.S.C. § 849(b). Again, we disagree. In showing that defendant was “special,” the Government produced evidence that he was a “professional,” United States v. Sutton, 415 F.Supp. at 1325, which is to say that his offenses were committed

as a part of a pattern of dealing in controlled substances which was criminal under applicable laws of any jurisdiction,
which constituted a substantial source of his income, and
in which he manifested special skill or expertise; .. .

21 U.S.C. § 849(e)(2). The “pattern” was evidenced by the fact that only a year previously defendant had been found in the same place, -with the same “farmhands,” and with 740 pounds of marijuana. State v. Moccia, 119 N.H. 169, 400 A.2d 44 (1979); 21 U.S.C. § 849(e). That defendant’s drug sales provided a “substantial source of his income” was shown by the tax court’s decision in Moccia v. Commissioner, No. 708-78 (June 4, 1979) and by his 1976 tax return. The decision indicates that defendant’s drug profits amounted to several hundred thousand dollars in 1976 — far more than the 50 percent of declared income ($30,000) that the statute requires. 21 U.S.C. § 849(e). Defendant argues that the tax court’s decision rests upon unlawful wiretap evidence. No policy of the law, however, requires us to go behind that decision to examine its evidentiary basis where the decision itself was used only for sentencing purposes, and where, in any event, defendant’s attacks on the wiretap evidence have been heard, and rejected, by the New Hampshire courts. In any event, defendant’s claim that the income projections are unreliable because the wiretap lasted Only eleven days is frivolous. The projections imply that defendant’s drug profits exceeded the requisite $15,000 during just the period of the wiretap itself! Finally, defendant’s “special skill” was shown by his prior conviction, his flight before trial, and this same wiretap evidence (which revealed that defendant was in charge of a good-sized operation, and that[*66] he described himself as a “dealer’s dealer”). In sum, the trial judge’s finding that defendant was “special” was adequately supported by the evidence, which the judge identified in the record as the statute requires. 21 U.S.C. § 849(b).

The statute’s special definition of “dangerous” requires that the judge find that

a period of confinement longer than that provided for [the] felonious violation [in question] is required for the protection of the public from further criminal conduct by the defendant.

21 U.S.C. § 849(f). In our view, the judge’s finding that defendant was “special” was also adequate to support a finding of “dangerous.”

Third, defendant claims that his sentence is disproportionately severe. 21 U.S.C. § 849(b). We note that there are certain mitigating factors in defendant’s background. Nonetheless, the fifteen-year sentence is considerably less than the twenty-five years the Government sought. It is seven years more than the sentence he might have been given were he not a “special” and “dangerous” offender. See 21 U.S.C. § 841(b)(1)(B) and (b)(2). Yet, it is still only three years more than the sentence that might have been imposed had defendant’s earlier drug conviction been under federal rather than state law. See 21 U.S.C. § 841(b)(1)(B). The evidence, suggesting that he was a serious professional dealer, who repeated his crimes, and who fled the jurisdiction when caught, convinces us that this is not a case for interfering with the sentence.

In sum, we reject defendant’s arguments, and the conviction and sentence are

Affirmed.