opinion: UNITED STATES of America, Plaintiff-Appellee, v. Robert Paul NEMETH, Defendant-Appellant.
  No. 20024.
  United States Court of Appeals, Sixth Circuit.
  Aug. 18, 1970.
  Charles E. Peyton (Court Appointed) Louisville, Ky., for appellant on brief.
  John L. Smith, U. S. Atty., Louisville, Ky., for appellee on brief.
  Before WEICK, CELEBREZZE and PECK, Circuit Judges.
  PER CURIAM.
  Appellant was observed by two Louisville police officers outside a Louisville bank at 2:15 a. m. on February 10, 1969. The officers testified that as they approached appellant he was standing beside the bank’s night deposit box and that as soon as he saw them, he made a motion as though he were throwing something away and began walking rapidly away from the bank. After questioning appellant about his actions and his reason for being in the area at that time of night and receiving vague and unsatisfactory answers, the police arrested appellant on loitering and disorderly conduct charges. Subsequent investigation at the bank disclosed that $750' was missing from the night deposit box, and an envelope scoop device bearing appellant’s fingerprint was found inside the night deposit box. Appellant was then indicted, tried and convicted by a jury of violation of 18 U.S.C. § 2113(b), larceny of a federally insured bank. This appeal followed.
  Appellant did not take the witness stand or offer any evidence in his defense at the trial. The government’s case against him consisted principally of the circumstances of his arrest, of the fact that $750 was missing from the bank’s night deposit box, and of the fact that appellant’s fingerprint was on the envelope device found inside the night deposit box. The government’s final witness was an FBI agent who, after testifying that he was familiar with the method of committing larceny of bank night deposit boxes by the use of wires and envelope scoop devices, testified that appellant had a prior conviction of the same offense with which he was charged in this case. All of the pertinent testimony on this point is contained in the following:
  “Q. [By the U. S. Att’y.] Mr. Doma-lewski, [FBI Agent] are you familiar with the defendant, Robert Paul Nemeth?
  “A. Yes, I am.
  “Q. And how long have you been familiar with him, sir?
  “A. I have had knowledge of Robert Paul Nemeth for approximately five years.
  “Q. And in what way?
  “A. Mr. Nemeth was first brought to my attention in connection with activity of which I had an interest.
  “Q. All right; has he been convicted before ?
  “Mr. Peyton: [Defense Counsel] Objection, Your Honor.
  “By the Court: Overruled.
  “Mr. Peyton: Move that the jury be discharged.
  “By the Court: Overruled. I will give the jury an admonition at the right time.
  “Q. Has Mr. Nemeth been convicted under the same statute before, using that same kind of device?
  “A. Yes, sir; he has.”
  Although the trial judge immediately instructed the jury in substance that evidence of a prior conviction could not be considered as evidence of guilt of the offense charged, the testimony, and the manner in which it was presented, was so prejudicial that appellant’s conviction must be reversed and a new trial ordered.
  The general rule is that evidence of prior criminal activity is inadmissible to prove the commission of a later offense. The only exceptions to that rule are that when intent, motive or lack of mistake are in issue, evidence of prior similar and related offenses tending to show a consistent pattern of conduct is admissible if accompanied by appropriate cautionary instructions. E. g., Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 93 L.Ed. 919 (1949); Gilstrap v. United States, 389 F.2d 6, 9-10 (5th Cir. 1968); Zamora v. United States, 369 F.2d 855, 858-859 (10th Cir. 1966), cert. denied, 386 U.S. 913, 87 S.Ct. 863, 17 L.Ed.2d 785 (1967); United States v. Kirkpatrick, 361 F.2d 866, 868 (6th Cir. 1966); Kowalchuk v. United States, 176 F.2d 873, 878 (6th Cir. 1949). Furthermore, in order to show a consistent pattern of conduct relating to the offense charged, the evidence must be of prior similar acts reasonably near in time to the offense charged. Gilstrap v. United States, supra; Whaley v. United States, 324 F.2d 356, 358 (9th Cir. 1963), cert. denied, 376 U.S. 911, 84 S.Ct. 665, 11 L.Ed.2d 609 (1964).
  Here there was no showing where or by what means the appellant committed the prior act, nor was it shown to be related in point of time or otherwise to the offense charged. From all that appears in this testimony, appellant had one prior conviction for the same offense. Presumably this was within the five year period prior to his trial in this case, although even this is not clear. If such is an accurate reflection of the record, even proper evidence of facts concerning a prior offense would be inadmissible as too remote in time. Finally, the manner in which the evidence was presented to the jury was particularly objectionable since the only thing stressed in the instruction to the jury was the agent’s hearsay statement that appellant had a prior conviction of the same offense. Evidence of this fact even if properly documented, would clearly be inadmissible where the defendant does not testify and his character is not otherwise in issue. Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892); United States v. Rudolph, 403 F.2d 805, 807 (6th Cir. 1968).
  Since the substance and the pres-. entation of the evidence here was clearly inadmissible and prejudicial, the trial judge’s cautionary instruction immediately following the agent’s testimony cannot be held to have cured the error. As stated above, properly authenticated evidence of prior offenses is admissible only if accompanied by appropriate instructions.' However, otherwise proper cautionary instructions cannot supply the first element of the exceptions to the general rule, i. e., authenticated evidence of prior similar offenses tending to show a consistent pattern of conduct.
  The remaining issues raised by appellant are either without merit or consideration of them is unnecessary in light of the disposition of this ease.
  The judgment of the District Court is reversed and the case is remanded with instructions to grant the appellant a new trial.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.