3.3 Other Crimes, Wrongs or Acts of Defendant

            You have heard evidence that the defendant committed other [crimes] [wrongs] [acts] not charged here.  You may consider this evidence only for its bearing, if any, on the question of the defendant’s [intent] [motive] [opportunity] [preparation] [plan] [knowledge] [identity] [absence of mistake] [absence of accident] and for no other purpose.  [You may not consider this evidence as evidence of guilt of the crime for which the defendant is now on trial.]

Comment

            See Fed. R. Evid. 404(b). Evidence of other crimes, wrongs or acts may be admissible for one purpose but not another; therefore, this instruction is required by Fed. R. Evid. 105 (“If the court admits evidence that is admissible against a party or for a purpose— but not admissible against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.”). See, e.g., United States v. Boudreau, 154 F.4th 1132, 1142⁠-43 (9th Cir. 2025) (applying Federal Rule of Evidence 404(b)(1) to admit prior sexual relationships with a minor during trial for possession of child pornography on the basis that the information “tended to prove a material point—that [defendant] was sexually interested in minors”); United States v. Justus, 162 F.4th 962, 968-69 (9th Cir. 2025) (admitting social media posts advocating violence and physical attacks on law enforcement for non-propensity purpose of demonstrating the defendant’s state of mind at the time of his attack on two Protective Service Officers standing guard at the federal courthouse).

            The Ninth Circuit has approved this instruction. See United States v. Lloyd, 807 F.3d 1128, 1167 (9th Cir. 2015) (rejecting argument that “not charged here” improperly implies other acts that could have been charged); United States v. Hardrick, 766 F.3d 1051, 1056 (9th Cir. 2014).

            See also Instruction 2.10 (Other Crimes, Wrongs, or Acts of Defendant), Instruction 2.11 (Similar Acts in Sexual Assault and Child Molestation Cases), and Instruction 3.6 (Impeachment, Prior Conviction of Defendant) and the Comment thereto.

Revised March 2026