United States of America v. Gary Clay

*The Honorable Algenon L. Marbley, United States District Judge for the Southern District of
Ohio, sitting by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0106p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA ,
Plaintiff-Appellee,
v.
GARY CLAY ,
Defendant-Appellant.
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No. 09-5568
Filed: April 19, 2012
Before: MOORE and KETHLEDGE, Circuit Judges; MARBLEY, District Judge.*
_________________
ORDER
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The court having received a petition for rehearing en banc, and the petition
having been circulated not only to the original panel members but also to all other active
judges of this court, and less than a majority of the judges having favored the suggestion,
the petition for rehearing has been referred to the original panel.
The panel has further reviewed the petition for rehearing and concludes that the
issues raised in the petition were fully considered upon the original submission and
decision of the case. Accordingly, the petition is denied.
1

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1See, e.g., United States v. Murphy, 241 F.3d 447, 450 (6th Cir. 2001) (applying de novo review);
United States v. Mack, 258 F.3d 548, 553 n.1 (6th Cir. 2001) (disagreeing that “we should review de novo
the district court’s decision that the evidence was admissible for a proper purpose”); United States v.
Haywood, 280 F.3d 715, 720 (6th Cir. 2002) (rejecting precisely the standard of review that the majority
employed in this case); United States v. Perry, 438 F.3d 642, 647 (6th Cir. 2006) (applying de novo
review); United States v. Matthews, 440 F.3d 818, 828 (6th Cir. 2006) (same); United States v. Ayoub, 498
F.3d 532, 547 (6th Cir. 2007) (same); United States v. Love, 254 F. App’x 511, 513-14 (6th Cir. 2007)
(“This court’s precedent is inconsistent regarding what standard of review applies,” but “to the extent that
cases after Haywood and Mack apply the three-tiered standard of review, they are errant”); United States
v. Bell, 516 F.3d 432, 440 (6th Cir. 2008) (applying de novo review); United States v. Hembree, 312 F.
App’x 720, 723-24 (6th Cir. 2008) (same); United States v. Jenkins, 593 F.3d 480, 484 (6th Cir. 2010)
(applying abuse-of-discretion review); United States v. Allen, 619 F.3d 518, 524 n.2 (6th Cir. 2010) (noting
that this circuit has “repudiated the three-tiered standard of review for Rule 404(b) determinations in light
of” Joiner); United States v. Hardy, 643 F.3d 143, 150 (6th Cir. 2011) (applying abuse-of-discretion
review); United States v. Heard, No. 08-1426, 2012 WL 636789, at *4 (6th Cir. Feb. 29, 2012)
(disagreeing with Ayoub, 498 F.3d at 547).
KETHLEDGE, Circuit Judge, dissenting from the denial of rehearing en banc.
This case presents two significant and recurring issues on which our court has express
intra-circuit conflicts. The first issue—on which there is also an inter-circuit
split—concerns our standard of review with respect to a district court’s determination
that bad-acts evidence is admissible for a proper purpose under Federal Rule of Evidence
404(b). The panel majority reviewed this determination de novo, and reversed the
district court. See Op. at 5. I would have reviewed this determination for an abuse of
discretion (and affirmed), not only because that is the standard the Supreme Court has
told us to use for evidentiary decisions, but also because the determination rests
primarily upon the district court’s superior understanding of the issues and evidence at
trial. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997); Sprint/United Mgmt. Co.
v. Mendelsohn, 552 U.S. 379, 384 (2008) (“In deference to a district court’s familiarity
with the details of the case and its greater experience in evidentiary matters, courts of
appeals afford broad discretion to a district court’s evidentiary rulings”). Specifically,
once the district court identifies one of the purposes listed in Rule 404(b), the question
then becomes whether, given the issues and evidence in the case, the proposed bad-acts
evidence sufficiently aligns with that purpose. The district court knows that ground
better than we do. But the more important point is that our decisions show one panel
after another disagreeing with each other in published opinions discussing the issue.1
We ought to clean up our law on this issue.

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No. 09-5568 United States v. Clay Page 3
The Supreme Court has encountered the same situation in an analogous context.
In Cooter & Gell v. Hartmax Corporation, for instance, the Court addressed the question
“whether the court of appeals must defer to the district court’s legal conclusions in Rule
11 proceedings[,]” where the standard of review is otherwise abuse of discretion. 496
U.S. 384, 401 (1990). And the Court held that, for legal and factual questions alike that
require “‘fact-intensive, close calls,’” we should apply a “unitary abuse-of-discretion
standard.” Id. at 403, 404 (citation omitted). The question whether bad-acts evidence
was admitted for a proper purpose under Rule 404(b) is such an issue.
The mere tincture of a legal issue, in a question predominately factual, should not
be enough to vaporize the deference we owe the district court. And there is no disputing
that the evidentiary issues presented in this case are predominantly factual. As it turns
out, there is a circuit split on this issue: compare United States v. Green, 617 F.3d 233,
239 (3d Cir. 2010) (applying de novo review to a district court’s determination of proper
purpose under Rule 404(b)) and United States v. Akin, 213 F. App’x 606, 608 (9th Cir.
2006) (per curiam) (same) and United States v. Plumman, 409 F.3d 919, 928 (8th Cir.
2005) (applying de novo review to the district court’s “‘interpretation and application’”
of Rule 404(b) (citation omitted)) with United States v. Hite, 364 F.3d 874, 881 n.10 (7th
Cir. 2004) vacated on other grounds by 543 U.S. 1103 (2005) (rejecting de novo review
for this same issue) and United States v. Gilbert, 229 F.3d 15, 20-21 (1st Cir. 2000)
(holding that, unless the district court “misapprehended the scope of [Rule 404(b)],” “we
review its application of Rule[] 404(b) . . . to the proffered evidence only for an abuse
of discretion”); see also United States v. Osorio, 288 F. App’x 971, 974 (5th Cir. 2008)
(per curiam) (applying a “heightened abuse-of-discretion standard” in reviewing the
admission of evidence under Rule 404(b)). The circuits are also split (sometimes
internally) on essentially the same issue in the context of other evidentiary rules.
Compare United States v. Tatum, No. 10-2625, 2012 WL 573959, at *3 (6th Cir. Feb.
23, 2012) (“[W]e review de novo the court’s ultimate legal conclusion that the
statements may be received as non-hearsay”) and United States v. Ferguson, __ F.3d __,
2011 WL 6351862, at *17 (2d Cir. Aug. 1, 2011) (applying de novo review to the
question whether evidence is hearsay) and Mahone v. Lehman, 347 F.3d 1170, 1171 (9th

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No. 09-5568 United States v. Clay Page 4
Cir. 2003) (applying de novo review to “‘construction of the hearsay rule’” (citation
omitted)) with United States v. Brown, 669 F.3d 10, 22 (1st Cir. 2012) (reviewing
admission of purported hearsay for an abuse of discretion) and United States v. Tran,
568 F.3d 1156, 1162 (9th Cir. 2009) (reviewing for an abuse of discretion the decision
that a statement is admissible hearsay) and United States v. Lopez-Garcia, No. 98-2252,
1999 WL 707783, at *2 (10th Cir. Aug. 18, 1999) (applying abuse-of-discretion review
to a decision whether evidence is hearsay) and Trepel v. Roadway Express, Inc., 194
F.3d 708, 716-17 (6th Cir. 1999) (rejecting de novo review of the district court’s
decision whether evidence is inadmissible hearsay); compare also Echo, Inc. v.
Timberland Machs. & Irrigation, Inc., 661 F.3d 959, 963 (7th Cir. 2011) (reviewing de
novo the admissibility of testimony as lay opinion) with United States v. Jayyousi, 657
F.3d 1085, 1102 (11th Cir. 2011) (applying abuse-of-discretion review to “ruling
regarding the admissibility of the agent’s lay testimony”) and United States v. El-
Mezain, 664 F.3d 467, 511 (5th Cir. 2011) (same). So perhaps eventually the Supreme
Court will remind us again that “abuse of discretion is the proper standard of review of
a district court’s evidentiary rulings.” Joiner, 522 U.S. at 141.
The second intra-circuit conflict concerns the showing necessary to admit
evidence of a defendant’s prior crimes under Rule 404(b). For years, the test for
admitting such evidence had been whether the defendant’s conduct in the prior crime
was “sufficiently analogous to support an inference” that the defendant intended to
engage in similar conduct in the events giving rise to the pending case. See United
States v. Benton, 852 F.2d 1456, 1468 (6th Cir. 1988). That test was more flexible—and
thus easier to meet—than the test announced in United States v. Bell, 516 F.3d 432 (6th
Cir. 2008). There, we held that prior-crimes evidence is admissible only if the prior
crime was “part of the same scheme or involved a similar modus operandi[.]” Id. at 443.
Here, the majority applied the Bell test, whereas I would have applied the Benton
one—which other circuits apply as well. See United States v. LeCroy, 441 F.3d 914,
918, 926 (11th Cir. 2006); United States v. Shadletsky, 491 F.2d 677, 677-78 (5th Cir.
1974). But again the relevant point is that we have one panel after another disagreeing

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No. 09-5568 United States v. Clay Page 5
2See United States v. Stephens, 549 F.3d 459, 463 (6th Cir. 2008) (applying Bell); United States
v. Freeman, 412 F. App’x 735, 745 (6th Cir. 2010) (same); United States v. Hardy, 643 F.3d 143, 152 (6th
Cir. 2011) (“Bell is inconsistent with prior precedent and is therefore not controlling”); United States v.
Delaney, 443 F. App’x 122, 132 (6th Cir. 2011) (applying Bell); United States v. Avalos, No. 09-6474,
2012 WL 372959, at *2-3 (6th Cir. Feb. 6, 2012) (applying pre-Bell test); see also United States v. Jenkins,
593 F.3d 480, 485 (6th Cir. 2010) (“Our precedents are hard to reconcile on this point”).
with each other as to which of these tests controls.2 The practical result should be
intolerable: in our circuit even the most conscientious district-court judge cannot tell
what the law is on this important issue.
I respectfully dissent from the denial of rehearing.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
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Clerk

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