Opinion
Criminal Action No. 09-370 (SDW).
August 10, 2010
ORDER
This matter, having come before the Court on the Government's Motion for Admission of Fed.R.Evid. 404(b) Evidence (dated April 19, 2010) (the "Motion") and the Government's Request for Self Authenticating Business Record Certifications (Doc. # 28) (the "Request"), and this Court, having carefully reviewed and considered the submissions and arguments of the parties, for the reasons stated in this Court's Opinion dated August 10, 2010,
IT IS on this 10th day of August, 2010,
ORDERED that the Government's Motion and Request are GRANTED.
OPINION
On July 21, 2009, a grand jury returned a twelve-count superseding indictment naming Joseph Vas and Melvin Ramos as defendants (the "Defendants"). The Court will not recite the background as the alleged facts are sufficiently recounted in the superseding indictment.
Before the Court is the Government's Motion for Admission of Fed.R.Evid. 404(b) Evidence (the "Motion"). Also before the Court is a separate request by the Government to "self-authenticate" certain business records that it will seek to have admitted into evidence. For the following reasons, both the Motion and request are GRANTED.
Defendants request a pre-trial hearing. As it relates to the proposed 404(b) testimony, Defendants' request is denied and the Court will rely on the parties' submissions. The Government's Motion was noticed sufficiently in advance of trial.
DISCUSSION
I. Witness Testimony
The Government's Motion seeks admission of the testimony of two witnesses — Raymond Geneske and Jeffrey Gumbs — relating to their guilty pleas in state court. The Government argues that the witness testimony is admissible, irrespective of the requirements of Federal Rule of Evidence 404(b), because the testimony relates to Defendants' prior acts which are "intrinsic" to the charged offenses. In the alternative, the Government argues that the testimony is admissible under Fed.R.Evid. 404(b) because the "extrinsic" or "other" acts are not being offered solely to show Defendants' propensity to commit crimes or to adversely reflect upon their character.
A. Geneske's testimony is admissible as "intrinsic" evidence
Federal Rule of Evidence 404(b) prohibits evidence of "extrinsic acts" or "other acts" that is intended to show a defendant's propensity to commit crimes or to adversely reflect upon the defendant's character. Gov't of Virgin Islands v. Harris, 938 F.2d 401, 419 (3d Cir. 1991); Huddleston v. United States, 485 U.S. 681, 685 (1988). The rule, however, does not apply to evidence of acts which are "intrinsic" to the offense charged. United States v. Cross, 308 F.3d 308, 320 (3d Cir. 2002); United States v. Hoffecker, 530 F.3d 137, 189 (3d Cir. 2008) ("Rule 404(b) does not apply to evidence of uncharged offenses committed by a defendant when those acts are intrinsic to the proof of the charged offense.").
While most circuit courts view evidence as intrinsic if it is "inextricably intertwined" with the charged offense, the Third Circuit has reserved judgment as to whether evidence is intrinsic if it is "inextricably intertwined" with or "completes the story of" the charged offense. Cross, 308 F.3d at 320. Instead, the Third Circuit has thus far "insisted on a significantly closer connection for exemption from 404(b)." U.S. v. Haas, 184 Fed. Appx. 230, 233-34 (3d Cir. 2006). The Third Circuit has held that acts are intrinsic when they "directly prove" the charged offense. Cross, 308 F.3d at 320; United States v. Gibbs, 190 F.3d 188, 217 (3d Cir. 1999). Thus, when specific acts constitute direct proof of conduct to defraud, those acts are considered to be intrinsic to the charged offense and are not subject to analysis under Rule 404(b). United States v. Benjamin, 125 F. Appx. 438, 440-41 (3d Cir. 2005). Even under this more rigorous standard, the Court concludes that Geneske's testimony is intrinsic to the charged offenses and thus admissible, notwithstanding the applicability of Fed.R.Evid. 404(b).
Even though the Third Circuit has explicitly expressed no view on whether "other acts" that are "inextricably intertwined" with the events underlying the charge are "intrinsic" to the offense charged, district courts within this Circuit, including our own, have adopted the majority view. See, e.g., United States. v. Butch, 48 F. Supp. 2d 453, 458 (D.N.J. 1999) (holding that "`[o]ther act' evidence, as contemplated by Rule 404(b), is `intrinsic' when the evidence of the other act and the evidence of the crime charged are `inextricably intertwined' or both acts are part of a `single criminal episode' or the other acts were `necessary preliminaries' to the crime charged" but also explaining the apparent ambiguity in the Third Circuit) (quoting United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990)).
Though the Third Circuit has explained in § 5.7 of its Internal Operating Procedures that its unpublished opinions are not precedential authority, this Court nevertheless finds these cases instructive.
Here, the superseding indictment charges the defendants with engaging in a fraudulent "property-flip" scheme in which they abused defendant Vas's position as Mayor of Perth Amboy in order to misappropriate government funds in connection with Vas's sale of his personally owned Perth Amboy apartment building to a contractor. The superseding indictment also claims that Vas's 2006 congressional campaign was financed with approximately a quarter of the proceeds from this property-flip scheme and that the defendants committed various acts that constitute federal campaign contribution fraud.
The Government submits that Geneske will testify about two specific areas relating to the charges in the superseding indictment:
First, Mr. Geneske will testify that with respect to the straw donor scheme, defendants Joseph Vas and Melvin Ramos engaged in the same conduct over a period of years dating back to the early nineties. Simply put, Mr. Geneske will testify that donors were reimbursed in cash for their contributions in connection not only with the congressional campaign, but also in connection with defendant Vas's prior mayoral campaigns and Vas and Ramos knew about this practice and indeed participated in it. Second, Mr. Geneske is expected to testify that, in or around 2005, defendant Vas unlawfully promised Edward Trujillo, a prominent developer in Perth Amboy, approximately $3.5 million in RCA finds without the requisite approvals of the New Jersey Council on Affordable Housing ("COAH"). Moreover, Mr. Geneske will testify that in February and May of 2006, Eddie Trujillo provided him with a total of approximately $30,000 in cash to reimburse straw donors for their contributions to the "Vas for Congress" campaign. Mr. Geneske will further testify that defendant Vas was aware of and endorsed the straw donations.
(Gov't Br. 2-3.)
This Court finds that evidence of the origins of the defendants' campaign contribution scheme can be used to "directly prove" the charged offense. Specifically, Geneske's testimony demonstrates Defendants' overarching scheme and intent to unjustly enrich themselves at tax-payer expense. See U.S. v. Benjamin, 125 Fed. Appx. 438, 441 (3d Cir. 2005) (holding that the defendant's sale of additional computers, though not charged in the indictment, constituted intrinsic evidence because it directly proved the defendant's "overarching scheme — he unjustly enriched himself by selling computers for which the government had paid.") Additionally, Defendants' prior acts were directly related to their efforts to commence and perfect the property-flip scheme. Thus, Geneske's testimony relating to Defendants' pre-indictment conduct provides the origin, structure and basis of this scheme and can be used to prove the defendants had the knowledge, intent, motive and will to complete it. See United States v. Wilson, 46 Fed. Appx. 93, 96 (3d Cir. 2002) (explaining that testimony that "`goes directly' to issues material to the indictment . . . constitutes intrinsic, not extrinsic evidence"). As a consequence, the Court will allow the Government to introduce Geneske's testimony at trial. B. Gumbs's testimony is admissible under Fed.R.Evid. 404(b)
Federal Rule of Evidence 404(b) precludes admission of evidence of other crimes, wrongs, or acts to prove a person's character or to prove action in conformity. Fed.R.Evid. 404(b). Such evidence may be admissible for other purposes, such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . ." Fed.R.Evid. 404(b); see also U.S. v. Cummings, 156 Fed. Appx. 438, 442-43 (3d Cir. 2005). The Third Circuit has recognized that Rule 404(b) is a rule of inclusion rather than exclusion. See United States v. Cruz, 326 F.3d 392, 395 (3d Cir. 2003). Specifically, the Third Circuit explained in Cruz that the court "favor[s] the admission of evidence of other crimes, wrongs, or acts if such evidence is `relevant for any purpose other than to show a mere propensity to disposition on the part of the defendant to commit the crime.'" Id. (quoting United States v. Long, 574 F.2d 761, 765 (3d Cir. 1978)).
In order to comply with Rule 404(b), evidence of other acts must: (1) have a proper evidentiary purpose; (2) be relevant under Rule 402; (3) satisfy Rule 403 (i.e., not be substantially more prejudicial than probative); and (4) be accompanied by a limiting instruction, when requested pursuant to Federal Rule of Evidence 105, that instructs the jury not to use the evidence for an improper purpose. U.S. v. Cross, 308 F.3d 308, 320-21 (3d Cir. 2002).
To meet the first requirement and show a proper evidentiary purpose, the Government must "clearly articulate how that evidence fits into a chain of logical inferences without adverting to a mere propensity to commit crime now based on the commission of crime then." United States v. Mastrangelo, 172 F.3d 288, 295 (3d Cir. 1999) (internal quotation marks omitted). In this case, Gumbs will testify about his convictions in state court for (1) theft by unlawful taking; (2) tampering with public records; and (3) misapplication of government property and Vas's involvement with and knowledge of the underlying crimes. Here, the Government articulates logical inferences that render Vas's alleged involvement in the conduct leading to Gumbs's convictions relevant to establishing a foundation to the conduct charged in the superseding indictment. Thus, Gumbs's conviction is relevant to something other than Vas's character.
The second requirement is that the evidence must be relevant. Federal Rule of Civil Procedure 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." Fed.R.Evid. 401. Evidence that Vas allegedly engaged in pre-indictment conduct including theft and misapplication of government property is clearly relevant because it makes it more probable that Vas committed the acts charged in the superseding indictment.
The third requirement compels the Court to decide whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Fed.R.Evid. 403. Evidence cannot be excluded under Rule 403 merely because its unfairly prejudicial effect is greater than its probative value. Rather, evidence can be kept out only if its unfairly prejudicial effect "substantially outweighs" its probative value. Fed.R.Evid. 403. While there is a chance for prejudice, the court believes that this can be significantly mitigated through a cautionary instruction issued immediately after the evidence is presented. Accordingly, the court finds that the balancing of interests under Federal Rule of Evidence 404(b) weighs in favor of permitting Gumb's testimony and the evidence of Vas's prior bad acts.
It should be noted that the Government has agreed to a limiting instruction given to the jury immediately before or after the proposed evidence is introduced.
II. Government's Request to Self-Authenticate
The Government also seeks to admit certain documents and records under the business record exception to the hearsay rule. The Government requests that these records be "self-authenticated". Under the Federal Rules of Evidence, records are admissible if made in the course "of regularly conducted activity . . . if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the . . . record[s]." Fed.R.Evid. 803(6). The only requirement is that a custodian or qualified witness certifies that the record "was made at or near the time of the occurrence of the matters set forth; . . . was kept in the course of the regularly conducted activity; and was made by the regularly conducted activity as a regular practice. Fed.R.Evid. 902(11).
This Court holds that as long as a written certification pursuant to Fed.R.Evid. 902(11) is provided, the Government will not be required to bring in a witness to authenticate the records at trial.
CONCLUSION
For the reasons stated above, the Government's Motion and request are GRANTED.