Desarrollo de la propuesta

Rule 403 allows for the federal trial courts, in their discretion, to exclude relevant evidence whose probative value is outweighed by its prejudicial nature. It has been invoked by accused tax criminals charged with not reporting some of their illegal income.

Joseph Abodeely was charged with tax evasion in 1978 and 1979, for failing to report all of his income, some of which he earned in a slightly embarrassing way. He received income from several Northern California business ventures, including a motel, a fast food restaurant, and a bar that featured exotic dancers. He also received money from promoting prostitution out of his motel, using the dancers employed at the bar.

After he was convicted, Abdoleely argued that the trial court should not have admitted the prostitution evidence, because it was overly prejudicial. The Eighth Circuit disagreed, noting

that gains from unlawful activity are taxable and the prostitution evidence was relevant because it has the tendency to make it more probable that Abodeely had unreported income from a taxable source.

Evidence of this nature is undoubtedly prejudicial to the defendant. The rule requires, however, that the probative value be substantially outweighed by the danger of unfair prejudice. Fed.R.Evid. 403 . . . Numerous cases have upheld the admission of highly prejudicial evidence that was inextricably tied to proving the taxable nature of the income. United States v. Tafoya, 757 F.2d 1522, 1526- 27 (5th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 252, 88 L.Ed.2d 259 (1985) (payment for assassination attempts); United States v. Ochs, 595 F.2d 1247, 1260-61 (2d Cir.), cert. denied, 444 U.S. 955, 100 S.Ct. 435, 62 L.Ed.2d 328 (1979) (income derived from extortion, loansharking and prostitution); United

States v. Carrillo, 561 F.2d 1125, 1127 (5th Cir.1977) (unsavory business

dealings that may have been the basis of state criminal prosecution).

The court has no conceptual difficulty with the evidence concerning prostitution. While it is certainly prejudicial, it is highly probative of unreported taxable income. The gambling evidence, while having less direct probative value, is much less prejudicial, and indeed if its admission was error (which this court does not conclude), the error was harmless beyond a reasonable doubt. After all, having been shown that Abodeely ran a bar and a brothel, even the most straitlaced Iowa jury could hardly have been adversely affected by a showing of his participation in the legal, though perhaps sinful and worldly in the eyes of a midwestern jury, activity of gambling in Nevada.

United States v. Abodeely, 801 F.2d 1020, 1025-6 (8th _{Cir. 1986).}

The criminal tax investigation of Charles Blandina started when the IRS heard that he had bought an Indianapolis liquor store for $108,203.40, and paid $94,203.40 of the purchase price in cash. His 1983 tax return had reported taxable income of only $66,190.00. He was eventually indicted, on two counts of attempted evasion for the years 1983 and 1984.

In addition to presenting witnesses and exhibits regarding Blandina's 1983 and 1984 expenditures, the prosecutors called Richard Aaron, who testified that that he had delivered 30 to 40 pounds of marijuana to Blandina on two occasions in 1984. Aaron stated that Blandina paid for the first delivery in cash at a price of $300 to $400 a pound, but returned the second quantity of marijuana without paying for it because it was unacceptable, being of inferior quality. The jury convicted Blandina on both counts, and he was sentenced two years' imprisonment .

Blandina argued that it was unfair to admit the Richard Aaron marijuana testimony, since he was not charged with narcotics offenses and the prejudicial effect of this evidence greatly outweighed its probative value. The Seventh Circuit disagreed:

Aaron's marijuana transactions with Blandina are directly related to the question of Blandina's likely sources of taxable income--one of the core issues at trial, not an act collateral to those charged in the indictment. Thus, the proper inquiry is whether the evidence is relevant to the tax evasion charges, and, if relevant, whether Fed.R.Evid. 403 bars the admission of Aaron's testimony because its probative value is "substantially outweighed by the danger of unfair prejudice." In a net worth tax evasion prosecution the government is required to prove a likely source of income or negate all non-taxable sources of income. Holland,

supra. A defendant's possession of a controlled substance in a quantity

sufficient for resale is relevant and admissible to show a likely source of income.

United States v. Chu, 779 F.2d 356, 366 (7th Cir.1985). Thus, under Chu Aaron's

testimony concerning Blandina's purchase of 30 to 40 pounds of marijuana--a quantity sufficient for resale--is clearly relevant in this case.

Relevant evidence is not inadmissible under Rule 403 unless its probative value is substantially outweighed by the danger of unfair prejudice. The fact that evidence is prejudicial or damaging to the defendant does not of itself classify the evidence as inadmissible. United States v. Medina, 755 F.2d 1269, 1274 (7th Cir.1985). Indeed, "[r]elevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403." United States v. McRae, 593 F.2d 700, 707 (5th Cir.), cert. denied, 444 U.S. 862, 100 S.Ct. 128, 62 L.Ed.2d 83 (1979).

The trial transcript reflects that the trial judge conducted a hearing outside the presence of the jury in which Aaron testified about his marijuana transactions with Blandina. Only after the judge had determined that Aaron was a credible witness did he permit Aaron to testify in the presence of the jury. Further, immediately after the jury heard Aaron's testimony, the trial judge carefully instructed the jury as follows:

You just heard a witness, Richard Aaron, testify that he sold marijuana to the defendant, Charles Blandina. This testimony concerns things that happened outside what is charged in the indictment. As you are aware, the indictment has to do with two charges of evading taxes in 1983 and 1984. I would like to remind you at this point that this evidence should be considered only so far as it goes to show law violations pertaining the indictment which we have here under consideration. No consideration should be given by the jury as to whether the defendant is guilty of violating any other

criminal law. Such would be improper and unduly prejudicial to the defendant.

We are convinced that the trial judge's preliminary finding regarding Aaron's credibility combined with his cautionary instruction immediately following Aaron's testimony abated any possible unfair prejudicial effect Aaron's testimony might have had on the jury's decision-making process. ...Accordingly, we hold that the district court did not abuse its discretion in admitting Aaron's testimony.

United States v. Blandina, 895 F.2d 293 (7th _{Cir. 1989)}

Other caselaw examples, in which the defendants claimed prejudice in slightly different ways, abound. Vincent DiGirolamo ran a painting contracting company in Northern California known as Top Line, which involved submitting bids in a sealed bidding process. To win jobs announced by First National Savings, DiGirolamo made payments to John Warner, a bank employee, and to a company Warner set up to receive the kickbacks. In return, Warner provide DiGirolamo with information regarding the low bid so he could circumvent the bidding process. The payments to Warner were falsely listed on Top Line’s 1983 and 1984 corporate tax returns as a business expense or as cost of goods sold (i.e. purchases of inventory). DiGirolama was

charged with filing false corporate tax returns, and he and his wife were charged with filing false individual income tax returns for those same years.

In a pretrial motion to dismiss, the DiGirolamos sought to exclude the kickback evidence under Fed.R.Evid. 403, claiming that - because the jury will find the kickbacks immoral – it would prejudice them on the individual tax returns counts. He noted that since 1984, several major scandals involving financial wrongdoing resulted in a strong public reaction against financial wrongdoing, although he did not specify which ones. The district court rejected the motion. United States v. DiGirolamo, 808 F.Supp. 1445 (N.D. Cal. 1992).

In March, 1997, a jury convicted Defendant Denis M. Neill in Washington D.C. of filing individual tax returns which falsely claimed that he had no interest in or authority over a foreign bank account. (This is a “yes/no” question on the Schedule B attached to IRS Froms 1040). Neill was also charged and convicted of obstruction of justice, relating to his attempt to evade

compliance with a grand jury subpoena relating to the foreign account and some inaccurate statements before the grand jury. In a post-verdict motion for a new trial, Neill argued that the evidence underlying the obstruction counts prejudiced a fair trial on the other charges. He claimed the obstruction was inflammatory and resulted in prejudicial spillover.

The court rejected Neill’s motion for a new trial, noting that he never moved for severance. Moreoever, even if he had, the court would not have granted it, because severance was neither necessary nor appropriate to ensure that Neill received a fair trial. It found that the obstruction evidence was probative of Neill’s motive, plan, knowledge or absence of mistake in failing to report his signature authority over foreign bank accounts - that is, a common plan of

concealment from the IRS, under Fed.R.Evid. 404(b). United States v. Neill, 964 F.Supp. 438 (D.D.C. 1997).

8.5 Conclusion

These cases in this chapter show that persons charged with serious crimes have a difficult time arguing that the tax charges should not be included because of the likely prejudice, and the possibility that a jury will not be able to give them a fair shake. A motion for severance will generally not give such persons the relief they request, since they would still face tax charges in a separate trial. Moreover, when the tax charges are based on the failure to report funds received from the illegal activity that is also charged, joinder is appropriate under federal criminal pleading rules. This is bad news for criminals, and is a further illustration of the efficacy of criminal tax tools in redressing conduct that goes beyond tax cheating.