In US v. Brown, No. 08-3018, the court of appeals affirmed defendant's bank fraud conviction, on the grounds that 1) the extrinsic evidence of defendant's other uses of fictitious financial documents was substantively and temporally tied to the charged offenses, and those other uses were distinct enough not to be the "needless presentation of cumulative evidence" under Fed. R. Evid. 403; and 2) the extrinsic evidence that defendant had failed to pay for a house inspection was not probative of his intent to defraud the victim and therefore inadmissible under Rule 404(b), but this evidence was quite limited in length, not inflammatory, and was not mentioned during the government's closing arguments.
As the court of appeals wrote: "The Rule 404(b) evidence, with one exception, concerned Brown's use of fictitious financial documents before the first charged offense and shortly before the second charged offense. Although this evidence consumed a large part of the government's case-in-chief, the district court could reasonably conclude there was no unfair prejudice to Brown under Rule 403. Brown's intent was the contested issue at trial: The government had to prove he acted with specific intent to defraud the credit union, and Brown claimed to have acted in good faith."