His argument, I think, reveals parts of his defense. He cites a case that says knowing about a conspiracy isn’t enough to convict– the government has to prove taking action to further the ends of the conspiracy. Essentially, he’s arguing that hanging around while other people do the conspiracy does not prove guilt. This is a decent argument with a possible flaw: if he knew about the conspiracy to bribe Judge Lackey, can it really be said he was just hanging around in the session where Balducci and Backstrom reviewed the proposed order on November 1st? It has another flaw, in pulling the jury away from lay common sense– it may be the black letter law (as cited in Zach’s brief) but a layman’s reaction may be “Oh, he knew” in a way that trumps jury instructions.
But that’s all about where this is going and not the motion on other crime evidence.
The first argument he makes is that 404(b) evidence is allowed to show intent, and intent isn’t really at issue here. The issue is whether Zach participated in what he knew was a conspiracy to bribe the judge. It’s whether he participated that is in play; anyone participating intended to bribe. Proving another crime is about intent (not at issue) and not participation (very much at issue), Zach argues.
The problem here is that it does provide proof about intent-to-participate and participation. Proof Zach knew about a prior scheme to bribe a judge and participated in it really does show something about this case. If Zach knew about the bribe and helped edit that order, he participated here. The government wants to show and argue that this is how the conspiracy operated– look, Zach knew they did this before, and now they’re doing it again. The proof may be thin but it’s not nonexistent: The brief-on-a-napkin email is both an act that would make one part of a conspiracy (isn’t it?) and an act that would show one knew of the existence of the conspiracy.