Intrinsic-vs-404(b) Evidence Clarified: United States v. Elijah Hakim (3d Cir. 2025)

Introduction

United States v. Elijah Hakim, No. 23-1713, decided 8 August 2025 by the Court of Appeals for the Third Circuit, is a non-precedential opinion that nevertheless offers a concise clarification of two recurring evidentiary and sentencing problems: (1) the distinction between “intrinsic” evidence and “other-act” evidence under Federal Rule of Evidence 404(b), and (2) the continued permissibility of relying on acquitted conduct when calculating advisory Sentencing Guidelines ranges.

The appeal arose from Hakim’s convictions in the District Court of the Virgin Islands for conspiracy and possession with intent to distribute fentanyl. Hakim challenged (i) sufficiency of the evidence, (ii) the District Court’s admission of surveillance videos after an initial order excluding them, (iii) alleged constructive amendment of the indictment through jury instructions, and (iv) the use of acquitted conduct at sentencing. The panel—Judges Restrepo, Freeman (author), and McKee—affirmed on every ground.

Summary of the Judgment

• Sufficiency of the evidence: When the record is viewed in the light most favorable to the government, a rational juror could find Hakim guilty. Fingerprints, cell-site data, and surveillance footage tied both packages of fentanyl to Hakim and his live-in girlfriend, supporting the conspiracy and substantive possession counts.
• Admission of surveillance videos: The District Court’s pre-trial order excluded 404(b) evidence because the government failed to respond. The court later clarified that the order did not reach evidence intrinsic to the charged conduct. On that basis it admitted two post-office videos. The Court of Appeals held that clarification—and the resulting admission—fell well within the trial court’s discretion.
• Constructive amendment claim: The indictment alleged a conspiracy with “others known and unknown, including D.L.” The jury instructions did not rename or omit any essential element; they required the jury to find that Hakim conspired with at least one person. No plain error occurred.
• Sentencing—use of acquitted conduct: Relying on United States v. Watts, 519 U.S. 148 (1997), the panel reaffirmed that a sentencing court may consider conduct underlying an acquitted charge if proved by a preponderance of the evidence.

Analysis

1. Precedents Cited

The opinion is short but relies on several key authorities:

• United States v. Kousisis, 82 F.4th 230 (3d Cir. 2023) – standard of review for motions for judgment of acquittal.
• United States v. Zayas, 32 F.4th 211 (3d Cir. 2022) – elements of drug-trafficking conspiracy.
• In re Pharmacy Benefit Managers Antitrust Litig., 582 F.3d 432 (3d Cir. 2009) – district court’s authority to clarify or revisit interlocutory orders.
• United States v. Barkers-Woode, 136 F.4th 496 (3d Cir. 2025) – abuse of discretion standard for evidentiary rulings.
• United States v. Dowdell, 70 F.4th 134 (3d Cir. 2023) – setting aside forfeiture is reviewed for abuse of discretion.
• United States v. Vosburgh, 602 F.3d 512 (3d Cir. 2010) – plain error review of jury-instruction challenges.
• United States v. Watts, 519 U.S. 148 (1997) – sentencing court may rely on acquitted conduct.

2. Legal Reasoning

a. Intrinsic vs. 404(b) Evidence.
The pivotal procedural move was the District Court’s clarification that its pre-trial suppression order applied only to evidence offered under Rule 404(b), not to “intrinsic” evidence—that is, evidence that directly proved the charged crimes. Post-office videos showing Hakim and Lettsome mailing the fentanyl packages were intrinsic because they depicted the very acts alleged in Counts 1 and 2. Once so characterized, the evidence bypassed the notice requirements and four-part admissibility test of Rule 404(b).

b. Setting Aside Forfeiture.
Hakim argued the government forfeited its right to use the videos by failing to oppose his pre-trial motions. The panel noted that forfeiture (as opposed to waiver) is not jurisdictional; district courts may, in their discretion, forgive a litigant’s positional default. Citing Dowdell, the panel found no abuse because the clarification neither prejudiced Hakim nor contradicted any binding rule.

c. Constructive Amendment.
A constructive amendment occurs when the trial evidence or instructions modify an essential element of the offense charged, creating the risk that the defendant was convicted of a different crime. Here the indictment required proof that Hakim conspired with at least one other person; it did not require the government to prove the identity of that person. The instructions therefore matched the indictment’s elements, avoiding amendment territory flagged in precedents like Nolan.

d. Acquitted Conduct at Sentencing.
Although the jury found the conspiracy quantity was less than 40 grams, the judge made a preponderance finding of 43.26 grams and used that figure to raise Hakim’s offense level. The panel acknowledged the academic and judicial criticism of Watts but reiterated that, absent contrary Supreme Court or en banc authority, district courts may do precisely what the trial judge did.

3. Impact

• Evidentiary Practice in the Third Circuit. District courts often issue omnibus in-limine orders before trial. Hakim confirms a trial judge may later clarify that such an order does not sweep in intrinsic evidence, even where the government initially neglected to respond. Practitioners must therefore distinguish intrinsic proofs from “other acts” at the earliest stage.
• Notice Requirement under Rule 404(b). The decision underscores that Rule 404(b)’s notice requirement is triggered only for extrinsic bad-act evidence. This may embolden prosecutors to label disputed evidence “intrinsic,” but trial courts will retain discretion to police the boundary.
• Sentencing Advocacy. Despite ferment in scholarly circles and dissenting opinions, panels remain bound by Watts. Defense counsel in the Third Circuit must preserve objections to acquitted-conduct enhancements for possible Supreme Court review but cannot expect relief at the circuit level.
• Technology-based Proofs. The panel’s perfunctory treatment of cell-site location information (CSLI) indicates continuing acceptance of such evidence, provided the acquisition complied with Fourth Amendment standards (not at issue in this case).

Complex Concepts Simplified

• Intrinsic Evidence. Think of evidence as “inside the crime.” It tells the story of the charged offense itself rather than a defendant’s bad behavior on other occasions. Intrinsic evidence does not trigger Rule 404(b).
• Rule 404(b) Evidence. This rule bars admission of other “crimes, wrongs, or acts” to prove character. Such evidence can be admitted for specific purposes (motive, identity, etc.) but only after advance notice and a careful balancing test.
• Constructive Amendment vs. Variance. A constructive amendment changes an element of the charged offense (fatal). A variance introduces new facts but keeps the elements the same (usually harmless unless prejudicial).
• Acquitted Conduct. Conduct underpinning a charge the jury rejected. Under federal law, judges may still consider that conduct at sentencing if they find it more likely than not occurred.
• Plain Error Review. On appeal, an unpreserved objection is reversed only if (1) there was error, (2) it was clear or obvious, (3) it affected substantial rights, and (4) it seriously affected the fairness or integrity of the proceedings.

Conclusion

Although labeled “Not Precedential,” United States v. Elijah Hakim provides a useful road map for litigants navigating the overlap of evidentiary and sentencing rules in federal criminal practice. The opinion reinforces that:

1. Surveillance or transactional evidence forming the narrative of the charged offense is intrinsic and escapes Rule 404(b)’s notice and propensity strictures;
2. District courts retain broad discretion both to revisit interlocutory rulings and to forgive forfeitures when justice so requires;
3. Jury instructions that track statutory elements without naming every alleged co-conspirator do not constructively amend an indictment;
4. The Supreme Court’s decision in Watts continues to allow consideration of acquitted conduct in determining advisory guideline ranges, notwithstanding sustained criticism.

Going forward, the Hakim decision, though non-binding, is likely to be cited by district courts within the Third Circuit when distinguishing intrinsic evidence from Rule 404(b) material and when explaining the continued vitality of acquitted-conduct enhancements. Defense counsel should heed the opinion’s lessons—particularly the importance of explicitly challenging the intrinsic characterization of damaging evidence and preserving sentencing objections for higher review.