c31:No. 79-1071

ELY, Circuit Judge
(concurring):
I reluctantly concur in the result reached by the majority. Under the compulsion of our decisions, I have no choice save to agree that the trial judge did not abuse his discretion in admitting evidence of the September 1978 incident when appellant was apprehended by immigration agents after he stopped and called out to nine illegal aliens hiding inside a culvert that was apparently marked. I have greater difficulty, however, with the admission into evidence of the July 1977 incident when appellant was arrested, although never prosecuted, for having driven an automobile away from a tavern near the Mexican border with several riders picked up at the bar who turned out to be illegal aliens. This earlier incident, it seems to me, as readily supports an inference of innocent behavior as it does of culpable conduct. This being so, were it not for our court’s prior decision in United States v. Holley, 493 F.2d 581,584 (9th Cir.), cert. denied, 419 U.S. 861, 95 S.Ct. 112, 42 L.Ed.2d 96 (1974), I would conclude that the prosecution failed to demonstrate, “clearly and convincingly,” that appellant had knowingly transported illegal aliens on July 30, 1977.
I reiterate one paragraph of the majority’s opinion. That paragraph reads:
“The fact that, in each of the instances of prior arrest, the government did not prosecute, weakens the probative value of those incidents. So does the tendency of juries' to give excessive weight to such prior arrests, or to use them to characterize a defendant unfairly. I Wigmore, Evidence (3d Ed. 1940) § 194.”
To me, the foregoing language indicates a belief on the part of my Brothers, a belief which I thoroughly share, that the admission of evidence of prior acts under Fed.R. Evid. 404(b) is so fraught with potential unfairness that our trial judges should rigidly require the prosecution to establish the three elements of the three-part test that must be met before evidence of prior acts can be received. See United States v. Brashier, 548 F.2d 1315,1325 (9th Cir. 1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 565 (1977); see also United States v. Davis, 551 F.2d 233, 234-35 (8th Cir.), cert. denied, 431 U.S. 923, 97 S.Ct. 2197, 53 L.Ed.2d 237 (1977).
. United States v. Espinoza, 578 F.2d 224 (9th Cir.), cert. denied sub nom. Oropeza-Briones v. United States, 439 U.S. 849, 99 S.Ct. 151, 58 L.Ed.2d 151 (1978); United States v. Holley, 493 F.2d 581, 584 (9th Cir.), cert. denied, 419 U.S. 861, 95 S.Ct. 112, 42 L.Ed.2d 96 (1974).

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