Evidence – Other acts

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U.S. Court of Appeals For the Seventh Circuit

Criminal

Evidence – Other acts

It was not an abuse of discretion to admit evidence of payroll tax violations in a prosecution for failure to pay income taxes, but even if it was, the error was harmless, where the evidence of guilt was overwhelming.

“True, the district court could have explained its reasoning more fully on the record. As we said in Gomez, the court must, in every case, ‘assess whether the probative value of the other-act evidence is substantially outweighed by the risk of unfair prejudice and may exclude the evidence under Rule 403 if the risk is too great.’ 763 F.3d at 860. Gomez was decided after Curtis’s trial and so the district court did not have the benefit of its reasoning. The court did not expressly engage in that analysis on the record here, but any error was harmless. See Fed. R. Crim. P. 52(a); Gomez, 763 F.3d at 863 (evidentiary errors are subject to review for harmlessness). The test for harmless error is whether, in the mind of the average juror, the prosecution’s case would have been significantly less persuasive had the improper evidence been excluded. Simon, 727 F.3d at 697; United States v. Klebig, 600 F.3d 700, 722 (7th Cir. 2009). The government produced substantial evidence that Curtis knew he was obligated to pay his taxes, had the money to do so, and chose to use that money to pay for other things instead. The payroll tax evidence was lost in a sea of far more damning evidence demonstrating Curtis’s intent. For example, during the three charged years, Curtis had adjusted gross income of more than $1.4 million but paid none of it toward his corresponding tax liabilities of approximately $378,000 for that same time period. Instead, he spent more than $1.1 million on personal expenses that included $142,916 in life insurance premiums; $43,266 for a new Lincoln Navigator luxury SUV; $17,730 worth of wine; $32,775 in donations and political contributions; $6,945 on jewelry; and $10,891 on his pets. Presented with these expenditures and a list that also included gifts, firearms, restaurants, department stores, and other purely discretionary spending, any jury would conclude that Curtis had the money to pay his taxes (at least in part) and simply chose not to. The government’s case would have been equally persuasive without the payroll tax evidence. Any error was therefore harmless.”

Affirmed.

14-2069 U.S. v. Curtis

Appeal from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Rovner, J.

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