United States v. Kevin Patrick McCourt

This appeal requires us to decide whether “bad act” or “other crimes” evidence offered by an accused in a criminal case to show that a third party acted in conformity with the prior act and was therefore likely the guilty party is excludable under Fed.R. Evid. 404(b).

Kevin McCourt appeals his conviction on three counts of filing false claims with the government. 18 U.S.C. § 287 . His principal defense was that he was the wrong man. As part of that defense, McCourt sought to show that another person, Clinton McDonald, was a good candidate to have committed the crimes of which defendant was accused. The defense also tried to show that the government failed to investigate the case properly, and for ulterior reasons pursued McCourt instead of McDonald. Although McDonald did not testify, the defense sought to use McDonald’s prior criminal record (unidentified as to time or crime) to show bias on the part of the case agent and cast doubt on the government’s case against McCourt. The district court sustained the government’s objection to this evidence on Rule 404(b) grounds. McCourt cites that ruling as error, arguing that Rule 404(b) excludes only prior bad acts of the accused. He…