The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM AND ORDER OF COURT
Presently pending before the Court is the MOTION IN LIMINE TO COMPEL THE GOVERNMENT TO PROVIDE DEFENDANT WITH A STATEMENT OF UNCHARGED MISCONDUCT EVIDENCE filed by Defendant Thomas D. Tuka (Document No. 44), the RESPONSE filed by the government (Document No. 47), and the REPLY filed by Defendant (Document No. 52). On September 18, 2012, the Court heard oral argument from counsel, in the presence of Defendant Thomas D. Tuka. All counsel presented and argued the issues skillfully and effectively. The matter is now ripe for disposition. *fn1
Defendant requests that the government provide him with a description of any evidence under Rules 404(b) and/or 609 which it intends to use against him at trial and the purported purpose and relevance of such evidence.
The government responds that it "believes that the primary issue at trial will be whether defendant's actions were willful." Br. at 2. Therefore, on the issue of willfulness, the government seeks to introduce three (3) specific categories of evidence: (i) Defendant's federal tax return history for non-prosecution years; (ii) Defendant's Pennsylvania tax return history; and (iii) Defendant's participation in tax protest activities, which the Court will address seriatim.*fn2
Because the government has provided Defendant with a statement of uncharged misconduct which it intends to offer into evidence at trial, the Motion filed by Defendant is GRANTED. In its response, however, the government asks the Court for an order permitting it to introduce the evidence it has identified pursuant to Federal Rule of Evidence 404(b). That request will be GRANTED in part AND HELD IN ABEYANCE IN PART as discussed infra.
According to the government, its requests must be analyzed under Rule 404(b) as the evidence does not appear to meet the definition of "intrinsic evidence" as defined in United States v. Green, 617 F.3d 233 (3d Cir.), cert. denied, 131 S. Ct. 363 (2010). The Court agrees.
Evidence of a criminal defendant's uncharged conduct, including crimes, wrongs or other acts, may be admissible if the evidence is intrinsic to the charged offense; or the evidence is extrinsic to the charged offense but is offered for a proper purpose under Rule 404(b). See id. In United States v. Green, the United States Court of Appeals for the Third Circuit explained that "evidence is intrinsic if it 'directly proves' the charged offense" or are "uncharged acts performed contemporaneously with the charged crime" and "facilitate the commission of the charged crime." Id. at 248-49 (internal quotation marks and citations omitted). This type of evidence is admissible without the need for the prosecution to provide notice to the defendant before trial or for the court to provide limiting instructions to the jury during trial. Id. at 247. Thus, as a practical matter, "[a]ll that is accomplished by labeling evidence 'intrinsic' is relieving the Government from providing a defendant with the procedural protections of Rule 404(b)." Id. at 248.
Even if the evidence is not "intrinsic," it may still be admissible under Rule 404(b). Rule 404(b) provides, in relevant, part that: "Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character;" however, "[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Repeatedly, our court of appeals has observed that Rule 404(b) is "inclusionary" in that it states a "general rule of admissibility, subject to a single exception-evidence of other wrongful acts was admissible so long as it was not introduced solely to prove criminal propensity." Id.
To be admissible under Rule 404(b), "other acts" evidence "must (1) have a proper evidentiary purpose; (2) be relevant; (3) satisfy Rule 403; and (4) be accompanied by a limiting instruction (where requested) about the purpose for which the jury may consider it. Id. (citing United States v. Butch, 256 F.3d 171, 175 (3d Cir. 2001)). This approach mirrors that of the United States Supreme Court. See Huddleston v. United States, 485 U.S. 681, 691--92 (1988).
Here, Defendant's tax return history for non-prosecution years and alleged participation in "tax protest" activity does not fit the definition of "intrinsic evidence." By the government's own admission, these acts neither provide direct proof that Defendant willfully engaged in tax evasion in violation of 26 U.S.C. § 7201 nor constitute uncharged acts performed contemporaneously with the charged crime that facilitated its commission. Therefore, the government seeks to introduce this evidence, pursuant to Federal Rule of Evidence 404(b), to show motive, intent, plan, knowledge and absence of mistake. The government contends that this evidence is relevant under Rule 404(b), but not unfairly prejudicial so as to warrant exclusion under Rule 403.
I. Defendant's History Re Federal Tax Returns
The government seeks to offer evidence which consists of Defendant's prior federal tax returns (1991 - 1999), his subsequent failure to file such returns (2000-2002), correspondence with the IRS, and litigation in the Tax Court and Court of Appeals for the Third Circuit with regard to his claim that disability payments he received were legitimately excluded from gross income, filed false returns (showing no wages) in 1998 and 1999. The government also intends to introduce a 2003 Form 1040 which Defendant prepared and ...