Sample Motion Pursuant to Fed. R. Evid. 404(b) - Federal Public ...

FEDERAL PUBLIC DEFENDER
DISTRICT OF NEW JERSEY
800-840 COOPER STREET, SUITE 350
CAMDEN, NEW JERSEY 08102
RICHARD COUGHLIN CHESTER M. KELLER
FEDERAL PUBLIC DEFENDER FIRST ASSISTANT
(856) 757-5341 Telephone
(856) 757-5273 Facsimile
§
Honorable Jerome B. Simandle
United States District Judge
Mitchell Cohen Courthouse
One John F. Gerry Plaza
Fourth and Cooper Streets
Camden, New Jersey 08101
Dear Judge Simandle:
January 14, 2010
Re: United States v. Joseph Donato
Criminal No. 04-216(JBS)
Please accept this letter brief in lieu of a more formal response to the government’s motion
to admit prior acts pursuant to Fed R. Evid.404(b). It is evident for the following reasons that the
government seeks to introduce the evidence of Mr. Donato’s tax history to improperly infer to the
jury that, he is more likely to have acted similarly in this case. Accordantly, Mr. Donato respectfully
request that the government motion be denied.
Statement of Facts
On April 12, 2004 Joseph Donato, along with co-defendants Inge Donato and Kevin McKee
were arrested for being involved in a conspiracy, 18 U.S.C.§ 371, and evading employment taxes
and filing personal income taxes, in violation of 26 U.S.C. §§ 7201 and 7203. The charges were
indicted by a grand jury and charged that the above crimes occurred during the years of 1997
through 2000. A superceding indictment for the above charges was returned on September 14, 2004
and its scope was also for the aforementioned period. Mr. Donato pled not guilty to these charges.
The government seeks to introduce prior acts of tax non- compliance for years ranging from 1990
through 1996 and for years 2001 through the present. For the following reasons the government’s
evidence is inadmissable under Fed. R. Evid. 404(b).
Legal Argument
Fed. R. Evid. 404(b) provides in pertinent part:
Evidence of other crimes, wrongs or acts is not admissible to prove the character
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of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.
In order to admit prior bad act evidence, the court must be satisfied that the following four
criteria are met:
(1) the evidence must have a proper purpose under Rule 404(b); (2) it must be
relevant under Rule 402; (3) its probative value must outweigh its prejudicial effect
under Rule 403; and (4) the court must charge the jury to consider the evidence only
for the limited purpose for which it is admitted.
United States v. Console, 13 F.3d 641, 659 (3rd Cir. 1993) cert. denied, 511 U.S. 1076, and 513 U.S.
812 (1994)(citing United States v. Sampson, 980 F.2d 883, 886 (3rd Cir. 1992).
Although sometimes characterized as a "rule of admissibility," the Third Circuit has repeatedly
expressed its concern that "although the government will hardly admit it, the reasons proffered to
admit prior bad act evidence may often be Potemkin village, because the motive, we suspect, is often
mixed between an urge to show some other consequential fact as well as to impugn the defendant’s
character." United States v. Jemal, 26 F.3d 1267, 1272 (3rd Cir. 1994)(quoting, Sampson, supra, at
886). Accordingly, when the government "offers prior offense evidence, it must clearly articulate
how that evidence fits into a chain of logical inferences, no link of which can be the inference that
because the defendant committed . . . offenses before, he therefore is more likely to have committed
this one." Id. at 1272 (quoting Sampson at 887).
Finally, as stated earlier, if the prior acts evidence is found to be relevant, the court must
weigh its probative value against the danger that it unfairly prejudices the defendant. In this balancing
process, the court must "assess the genuine need for the challenged evidence and balance that against
the risk that the information will influence the jury to convict on improper grounds." United States
v. Sriyuth, 98 F.3d 739, 747-48 (3rd Cir. 1996) cert. denied, 117 S. Ct. 1016 (1997). The court must
consider several factors in its weighing process, including:
[t]he actual need for that evidence in view of the contested issues and the other
evidence available to the prosecution, and the strength of the evidence in proving the
issue, against the danger that the jury will be inflamed by the evidence to decide that
because the accused was the perpetrator of the other crimes, he probably committed
the for which he is on trial as well . . . . The treasured principles underlying the rule
against admitting evidence of other crimes should be relaxed only when such evidence
is genuinely needed and would be genuinely relevant.
Id. at 748 (quoting United States v. Cook, 538 F.3d 1000, 1003 (3rd Cir. 1976)). In short, "to
overcome this significant risk of unfair prejudice, the government must prove necessity." Id.

A. The evidence of the Mr. Donato’s prior tax record is relevant to no other issue
in this case except to show Mr. Donato’s alleged propensity to evade, defeat,
and willfully fail to report, and pay tax is inadmissible.
Pursuant to Fed. R. Evid. 402, "all relevant evidence is admissible, except as otherwise
provided by . . . these rules." Fed. R. Evid. 401 defines "relevant evidence" as "evidence having any
tendency to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence." The government asserts that
the proffered prior failure to comply with state and federal tax law is relevant to show that
defendant’s motive, intent knowledge and acted without mistake. Moreover the government asserts
that this conduct outside the indictment is needed to prove the defendant acted willfully. The
government desire for this evidence is because the defendant did not comply with state and federal
tax law in years before and after the indictment than he is likely to have committed the crimes in this
case. This is hardly the type of tight logical fit that is required to admit prior bad act evidence.
Jemal at 1272.
As stated above if the prior crime evidence is found to be relevant, the court must weigh its
probative value against the danger that it unfairly prejudices the defendant. In this balancing process,
the court must "assess the genuine need for the challenged evidence and balance that against the risk
that the information will influence the jury to convict on improper grounds" United States v. Sriyuth
, 98 F.3d 739, 747-48(3rd Cir. 1996) cert. denied 117 S. Ct. 1016 (1997) The court must consider
several factors in its weighing process, including:
[t]he actual need for that evidence in view of the contested issues and the other
evidence available to the prosecution, and the strength of the evidence in proving the
issue, against the danger that the jury will be inflamed by the evidence to decide that
because the accused was the perpetrator of the other crimes, he probably committed
the crime for which he is on trial as well.... The treasured principles underlying the
rule against admitting evidence of other crimes should be relaxed only when such
evidence is genuinely needed and would be genuinely relevant.
Id. at 748 (quoting United States v. Cook, 538 F.2d 1000, 1003 (3rd Cir. 1976) In short, " to
overcome this significant of unfair prejudice, the government must prove necessity. Id.
The government charges that this evidence is needed to additionally prove that the defendant
acted willfully. The government states these documents offer limited detail regarding the defendants
knowledge, intent and lack of mistake. The desire for these additional documents is unnecessary and
redundant, and their true purpose is to inflame the jury and unfairly prejudice the defendant from
having a fair trial with the presumption of innocense afforded criminal defendants. Moreover the
inclusion of the state tax records will add confusion and lengthen the case .
"In order to admit evidence under the "intent" component of Rule 404(b), intent must be an
element of the crime charged and the evidence offered must cast light upon the defendant’ s intent
to commit the crime." United States v. Himelwright, 42 F.3d 777,782 (3d Cir. 1994) (citing united
States v. Kirk, 528 F.2d 1057, 1060 (5th Cir. 1976). To be admissible under 404(b) an evidential link

etween the proffered evidence and an issue at trial other than character is essential Huddleston v.
United States, 485 U.S.681, 686 (1988); United States v. Echeverri, 854 F.2d 638,644 (3rd Cir.
1988). See also Government v. Virgin Islands v. Archibald, 987 F.2d 180 (3rd Cir. 1993).
Speculation is not evidence of a connection between two matters. See, United States v. Schwartz,
790 F.2d 1059.
In this case only speculation and guesswork can provide the link between the documents and
testimony sought to be introduced by the government and defendant’s intent to commit the instant
offense. The documents and testimony relate to persons and activity which are not covered in the
indictment. It is not sufficient for the government to speculate that these documents or this testimony
has any bearing on the defendant’s intent in this case. Additionally, the documents and testimony is
substantially outweighed by the prejudice to the defendant resulting from their use.
B. Assuming, arguendo, that the prior crimes are marginally relevant, its relevance
is substantially outweighed by the risk of unfair prejudice to Mr. Donato.
Fed. R. Evid. 403 states in pertinent part: "although relevant, the evidence may be excluded
if its probable value is substantially outweighed by the danger of unfair prejudice, confusion of issues,
or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence." This is precisely the type of situation in which the proffered evidence tends
to focus the jury on the prior acts instead of the instant crime charged. It is a very short hop for the
jury to improperly conclude that since the defendant did it before, he probably did it this time. The
past tax non-compliance are the same and the government argues that the manner in which the crimes
were committed are the same. This, coupled with the strength of the government’s case, unfairly
prejudices the defendant in a way that substantially outweighs any marginal relevance the evidence
has to the purposes for which the government offers it (specific plan, method and motive). Moreover,
given the clear and strong evidence the government is likely to offer concerning the instant offense,
the presentation of the prior crime evidence is simply a "needless presentation of cumulative
evidence."
For the foregoing reasons, Mr. Donato submits that the government’s motion to admit
evidence of a prior fraud and perjury pursuant to Fed. R. Evid. 404(b) should be denied.
cc: Michael Visiliadis, Esq.
Joseph Donato
Respectfully Submitted,
s/Christopher O’Malley
Assistant Federal Public Defender