c284:Nos. 80-1091, 80-1103

TAMM, Circuit Judge,
concurring:
I concur in the court’s opinion affirming appellants’ convictions. I find disturbing, however, the manner in which the prosecution presented the “bad acts” testimony challenged here by appellant Holland. Accordingly, I believe a brief note is required to aid the government in its future use of such evidence.
Rule 404(b) of the Federal Rules of Evidence is the product of a careful balancing of interests. On one hand, the rule seeks to protect the defendant from the danger that the admission of his “bad acts” may confuse the jury, leading it to premise its verdict upon an evaluation of his character rather than upon an assessment of the evidence relevant to the crime with which he is presently charged. To ensure that protection Rule 404(b) establishes a broad prohibition against the admission of such evidence. On the other hand, the rule recognizes that legitimate purposes may also be served by the admission of bad acts evidence. For that reason it sets forth certain limited purposes for which this evidence may be offered. Admission of evidence for one of these designated purposes does not mean, however, that the defendant’s interest is no longer entitled to protection. Rather, proper admission of a defendant’s bad acts requires that the evidence meet certain standards, that the jury be informed adequately as to the limited purposes for which the evidence is introduced and for which it may be considered, and that the evidence be presented in a manner consistent with the interests sought to be served by the rule. See generally United States v. Hernandez-Miranda, 601 F.2d 1104, 1107-09 (9th Cir. 1979); United States v. Day, 591 F.2d 861 (D.C.Cir.1978); United States v. Kirk, 528 F.2d 1057, 1060-61 (5th Cir. 1976).
Appropriate deference to these interests requires the prosecution to conduct its presentation of such evidence in a manner likely to make clear to the jurors the limited purpose for which it is properly admissible. See, e. g., United States v. Foskey, 636 F.2d 517, at 524 n.6 (D.C.Cir.1980). By presenting this evidence in a way calculated to serve a proper, limited purpose, the danger of confusion and potential for undue prejudice are readily averted. The government’s presentation of the bad acts testimony against appellant Holland does not reflect full appreciation of these responsibilities. The prosecution stated in its opening remarks that several aliens would testify that they had entrusted money to Holland for the purpose of obtaining a green card but had received neither the promised card nor the return of their money. No indication of the purpose of this testimony was given; the prosecution stated only that the evidence would show that these aliens had been “ripped off.” Trial transcript (Tr.) at 37. On direct examination of the aliens, the prosecution asked each if he had ever been repaid the money he had given appellant Holland. Again, the prosecutor made no attempt to indicate either the direction of his questioning, or the limited nature of the purpose for which the testimony could be offered. Tr. at 52-83. In fact, only in closing argument — on rebuttal — did the prosecution explain to the jury that the bad acts testimony had been elicited for certain purposes, and even then it failed to explain the Rule 404(b) exception under which it was operating. Tr. at 366. Moreover, any confusion remaining in the jurors’ minds as to the purpose of the aliens’ testimony was compounded by the following statement, also made in the rebuttal portion of the prosecution’s closing argument:
Counsel says he [Holland] helped people— he found jobs for people. Well where are the people he helped. I didn’t see any people he helped. I saw some people he hurt, though.
I saw Majib who came in here and said he gave him five hundred dollars and who was going to go to work for the Morley Engineering Company — for a guy named David Morley. David Morley was Mr. Holland — Majib didn’t know that. He didn’t get anything for his five hundred dollars.
Toor gave the man five hundred dollars and got nothing either. Goodarzi gave him three hundred and fifty and got nothing.
Andargch Belachew gave him a hundred and fifty and got nothing.
Tr. at 365-366.
Rule 404(b) attempts to ensure that the jury’s verdict is made upon the basis of relevant evidence. In this case the evidence which Holland challenges is relevant, indeed critical, to a material issue — that of intent. The manner in which the testimony was presented, however, was not directed toward its relevance to the crime charged. Instead, the prosecution’s presentation tended to indicate that the jury could convict Holland on the basis of evidence that he is the type of person who defrauds aliens. This is precisely the inference that Rule 404(b) was intended to preclude. The fact that the trial court appropriately instructed the jury as to the limited purposes for which the challenged testimony could be considered does not relieve the government of its obligations in this regard. I suggest that in the future the prosecution’s presentation of bad acts evidence reflect more clearly an awareness of these obligations.
. The “bad acts” evidence sought to be introduced must be relevant to a material issue that is not susceptible of proof by other probative evidence. See United States v. Goodwin, 492 F.2d 1141, 1150-51 (5th Cir. 1974); United States v. Turquitt, 557 F.2d 464, 468-69 (5th Cir. 1977). In addition, under the standard of Rule 403 the probative value of this evidence must outweigh its potential for prejudice. See United States v. Foskey, 636 F.2d 517, at 523 (D.C.Cir.1980).

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