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United States of America v. Nigel Osarenkhoe and Philbert Gorrick

September 30, 2011


Appeal from a judgment of the United States District Court for the Southern District of New York (Jones, J.).


United States v. Thompson


Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court=s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation Asummary order@). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 30th day of September, two thousand eleven.


UPON DUE CONSIDERATION,IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED. Defendant-appellant Stay Thompson appeals from a judgment of conviction entered on June 8, 2010, following a jury trial, in the Southern District of New York convicting her of one count of conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349 and one count of money laundering in violation of 18 U.S.C. § 1957. On appeal, Thompson contends that the district court erred (1) in admitting a document purported to be her 2000 tax return under Federal Rule of Evidence 404(b) and, (2) by refusing to charge the jury that it is permissible to minimize one's tax liability as long as one does not violate the law. We assume the parties' familiarity with the underlying facts and procedural history of the case.

I. Discussion

A. Admission of Unsigned 2000 Tax Return

With respect to the admissibility of the 2000 tax return, Thompson makes four arguments. First, Thompson argues that the government's "eve-of-trial" notification that it intended to use the 2000 tax return was not reasonable and prejudiced her ability to assemble contrary proof. See Fed. R. Evid. 404(b) (requiring "reasonable notice in advance of trial"). Second, Thompson contends that the 2000 tax return was insufficiently authenticated because it was not signed. For the first time on appeal, Thompson next argues that the tax return is not "probative" of any proper 404(b) issue. Finally, Thompson contends that because the trial turned on issues of credibility, the error in admitting the tax return was not harmless.

In determining whether to admit "other act" evidence under Rule 404(b), district courts in this Circuit follow our "inclusionary approach," meaning such evidence may be admitted under Rule 404(b) "for any purpose other than to demonstrate criminal propensity." United States v. LaFlam, 369 F.3d 153, 156 (2d Cir. 2004) (per curiam) (internal quotation marks omitted). In determining whether a district court properly admitted "other act" evidence, we consider "whether (1) it was offered for a proper purpose; (2) it was relevant to a material issue in dispute; (3) its probative value is substantially outweighed by its prejudicial effect; and (4) the trial court gave an appropriate limiting instruction to the jury if so requested by the defendant." Id. We review a district court's decision to admit evidence of prior bad acts under Rule 404(b) for abuse of discretion, "which we will find only if the judge acted in an arbitrary and irrational manner." United States v. Lombardozzi, 491 F.3d 61, 78-79 (2d Cir. 2007).

Leaving aside the issues of notice and authentication for the moment, there is no question that the 2000 tax return was admissible under Rule 404(b). It was offered for a proper purpose, that is, to provide a basis from which the jury could infer the defendant's fraudulent intent and absence of mistake in her improper receipt of adoption subsidy payments. Because Thompson denied she had knowingly defrauded New York City's Administration for Children's Services by accepting the adoption subsidy payments, evidence going to her intent and absence of mistake was relevant to the issue in dispute. In addition, the probative value of the tax return was not substantially outweighed by any prejudice to the defendant, particularly because the district court gave the jury a limiting instruction at the time the evidence was introduced. The remaining issues to address are Thompson's arguments that the government failed to give her reasonable notice and that the tax return was not properly authenticated because it was unsigned.

Beginning with the reasonableness of the government's notice, the pertinent section of Rule 404(b) states that "upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial . . . of the general nature of any such evidence it intends to introduce at trial."

Assuming Thompson made the requisite request for notice, the government's notice that it intended to introduce the 2000 tax return was reasonable under Rule 404(b). Thompson has not demonstrated that the government was purposely withholding information from her or failed to discover the information due to its own negligence in conducting its pre-trial investigation. Rather the record reveals that after discovering the dependents listed on the 2000 tax return had never lived with Thompson or even knew who she was, the government informed Thompson within hours of making that discovery on July 31, 2009. See United States v. Valenti, 60 F.3d 941, 945 (2d Cir. 1995) (holding that notice was reasonable where government provided defendant documents the very day it obtained them). Furthermore, the government did not move to admit the tax return until August 6, 2009, giving Thompson more than five days to prepare. Thompson has not indicated why the efforts she argues she would have made had she had more time to prepare―namely, locating her filed 2000 tax return or subpoenaing her co-workers to testify about the Turbo Tax demonstration―required more than five days to accomplish; indeed, the defense never requested an adjournment to undertake those steps. Id. (finding significant the defendant's failure to "seek a continuance or other postponement to study the documents.") Thompson, therefore, has not established that she was prejudiced by the timing of the government's notice. Thompson's argument that the 2000 tax return was never properly authenticated also fails. Under Rule 901(b)(4), a document can be duly authenticated, and thus attributable to Thompson, based on "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." As we have stated, "[w]ith respect to a document attributed to the defendant, the prosecution need only provide a ...

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