*3 KING, Before TRAXLER and Circuit KISER, L. Judges, and JACKSON Senior Judge United States District for the Virginia, sitting by District of Western designation. by published
Reversed and remanded TRAXLER opinion. Judge wrote the majority opinion, Judge in which KING joined. Judge wrote an Senior KISER opinion concurring part dissenting in part.
OPINION
TRAXLER, Judge: Circuit
Nancy Siegel currently Jean indictment numerous fraud-based of- fenses, fraud, see including mail wire (West 1341 & §§ 18 U.S.C.A. 2000 & Supp.2008). Siegel charge also faces a committing to prevent report- murder ing of her crimes. See 18 U.S.C.A. 1512(a)(1)(C) (West Supp.2008). 2000 & A week before her trial was scheduled to commence, granted the district court Sie- gel’s surplusage allega- motion to strike as tions in the indictment about certain subject crimes were not the of a sub- criminal stantive count and her motion to preclude from introducing in its case-in-chief evidence about those Manuelian, ARGUED: Christine Office crimes and other crimes not mentioned in Baltimore, Attorney, government appeals. of the United States the indictment. The her friends convinced court’s decisions district reverse We Mayberry co-sign a car and Linda John for trial. remand down-payment. pay the required loan on the surprisingly, Siegel Not defaulted I. loan, Mayberrys up ended car and the Siegel subsequently the loan. repaying A. personal informa- Mayberry’s used John $3,000 name. loan in his tion to obtain against indictment in the allegations the wal- In December stole by the forecast and the evidence *4 used Beck- let of Merle Beckman. She filings establish pre-trial in its they until were can- man’s credit cards Charles married following.1 Siegel celled, managed to convince bank and she 1968, couple divorced in and Kucharsld the number of the give employees her the end of in Sometime towards 1985. to Beckman’s ATM account connected sup- To gambling. Siegel began marriage, ultimately thousands of Siegel card. stole habit, Kuc- Siegel used gambling her port 1993, January dollars from Beckman. information to personal and name harski’s of Burdell Dowdell. Siegel stole the wallet knowl- Kucharski’s without obtain credit checks to “Charlene payable She wrote more left Kucharski edge. Siegel’s actions Dowdell’s account and then on Townsend” debt, he was forced $100,000in than the checks. In Townsend to cash posed as after the years few bankruptcy a file for 1993, Siegel the wallet of February stole couple divorced. Wallace, in daughter was Leslie whose daughter. Siegel in 1985. class with dance married Ted Giesendaffer Siegel began draining the funds immediately gamble apparently continued She accounts. Wallace from bank Wallace’s habit support gambling continued to twice, but her account number changed fraudulent in kind of by engaging the same employ- bank managed to convince Siegel marriage. began in her first conduct she account numbers her the new give ees to infor- personal Siegel used Giesendaffer’s Siegel also convinced telephone. over credit, mon- and she stole to obtain mation large a amount of to make employees bank mortgage-pay- by altering him ey from drive-through at the available to her cash to her payable make them checks to ment eventually employees Bank window.2 company. When mortgage instead of finally arrested on, Siegel was caught Siegel’s miscon- discovered Giesendaffer the drive- pick-up at making another after it and duct, her about he confronted through window. Siegel go police. threatened Maryland vio- in state guilty with such Siegel pleaded to that threat responded from the Dow- stemming her in a charges hid from court to lence that Giesendaffer Wallace, thefts. dell, and Beckman wallet separated and Giesendaffer Siegel closet. guilty pleading after In December in 1993. February 1992 and divorced in Wallace, Siegel em- Claiming told the to be pre-trial appeal, our re- a 1. Because this is being cancer treated for ployees that she by necessity limited to the view of the facts be- forgotten account number had prove at trial government intends to facts memory. chemotherapy affected her cause the allegations of the indict- as evidenced chemotherapy pre- claimed that She also gov- by the proffered and the evidence ment bank, entering the so bank vented her pro- pre-trial ernment in the course up large pick a amount employees let her ceedings. drive-through through window. money new, sentenced, being Siegel persuaded buy stole Watkins to her a but before $44,000 Cynthia financing wallet of co-worker Kidwell. BMW. The for the car name, keep credit in and the car was Although Kidwell did not cards was Watkins’s wallet, name, or checks in her the wallet did titled and insured under Watkins’s Siegel Siegel only contain license. but was the car’s driver. Kidwell’s driver’s on the license and put picture her own Siegel Sometime while was still take loans in then used the license to out (who probation, Mayberrys Siegel on un- Kidwell’s name. After the fraud was had left previously holding bag on Siegel covered and Kidwell identified as a loan) $3,000 car learned about the loan coworker, seeing Siegel Kidwell recalled Siegel Mayberry’s had taken out John parked on near Kidwell’s several occasions Mayberry repeatedly name. confronted home, presumably waiting intercept loan, finally about the until she re- mail connected to the fraudulent loans. time, paid him. Around this same Siegel pleaded guilty charges to state Butcher, approached acquain- Jack an theft, stemming from the Kidwell and she tance. cried as him that she told *5 ultimately suspended received sentences jail go she would unless she could come probation and of the for each wallet thefts. $3,000. up with Butcher borrowed the 1994, probation money In on gave Siegel, while she was and on the condi- crimes, Siegel the wallet-theft met Jack tion that repay she the loan herself. Sie- Watkins, thirty years loan, a widower almost gel course defaulted on the and Sungold her senior. lived on she personal Watkins later tried to use Butcher’s Reisterstown, Maryland. Road in sup- He information to obtain another loan. comfortably in ported himself his retire- Butcher found out about her efforts and Security ment through Social benefits and cancelled the loan. When he confronted annuity payments from New York Life. her and threatened to go police, to the Siegel, he met Siegel hysterical. eventually Before Watkins had a few became She sparingly, $3,000 credit cards that he used and managed repay he loan. always paid full balance when he did By 1995, August Siegel had accumulated make a credit purchase. card He owned tens of thousands of dollars of debt on home outright, mortgage his with no name, credit cards in Watkins’s and the other encumbrance. $40,000. car balance on the loan exceeded Siegel Watkins and met in the fall of At Siegel’s urging, Watkins obtained a 1994, vault, $44,000 when she sold him a mortgage burial and on August his home on 22, relationship quickly Siegel became close. 1995. used the mortgage pro- From all appearances, relationship debt, pay was ceeds to off credit card but then a romantic one. after promptly began making charges. By Within months new Watkins, meeting Siegel began using 1995, Siegel his November convinced Watkins accounts, personal open information to mortgage new to re-finance the on his home. generally using her own persuaded give address Ellicott She him to her the balance City, Maryland, as the address on ac- mortgage proceeds (approximately By 1994, $20,000 Siegel counts. December August had after the mortgage was satisfied) changed many the address on buy Watkins’s so she could the condomini- pre-existing City accounts to her Ellicott um in. Siegel’s she lived condominium unit, however, sale, address. She made charges extensive on not for Siegel and those accounts and allowed the accounts to mortgage proceeds pur- used the for other 1995, delinquent. May Siegel become In poses. diagnosed he was as suf- responsive, much con- exerted
Siegel apparently dementia, given his insistence fering life as she did personal trol over Watkins’s meeting Sie- that he was en- life. Before in the face of her denial financial over his times a several then trans- Siegel. had breakfast Watkins was gel, gaged Watkins friends, and he had group psychiatric Hospital with a ward. week ferred from a stepchildren contact with regular Siegel did not want records indicate Siegel, how- After he met marriage. prior discharged to be into care Watkins ever, meeting his breakfast began he in a placed long- to have him that she tried frequently. and less group less facility. was unable to find term care She final breakfast him to one eventually drove facility opening, an immediate a - to his friends. goodbye he said where took to her condominium she Watkins step- from his calls to Watkins Telephone April discharged he was on when tele- forwarded children were 14, 1996, emaciated May Watkins’s On about the never knew but Watkins phone, body point found near an access contact, had losing Before calls. Loudoun, Virginia. Trail Appalachian friends, stepchildren, breakfast told his body was stuffed inside two duffle relationship his with. neighbor about into a footlocker. bags and then stuffed that he and He told them Siegel. compres- cervical The cause of death was and that he getting married would be sion, and there were bruises and other into her condominium. would move body marks on the that were consistent contacted a February *6 toxicology A strangulation. with manual company inquire to about real estate analysis revealed that Watkins’s blood and home. company buying Watkins’s of an over-the- liver contained toxic levels 1996, Siegel pawned April week of first effects, with sedative counter medication personal possessions. most of Watkins’s that Watkins had been suggested which bought contacted company Siegel had The extremely high levels of the med- ingesting 9, By 1996. April home on Watkins’s a of weeks or months. period ication for sale, mortgage the November time of body was found within Although Watkins’s in arrears. already several months was death, were un- police his days after $8,800 just from the netted over Watkins body. Siegel never identify the able to home, had owned “a home he sale of his missing, him and because Wat- reported Siegel.” meeting free and clear before his friends and had lost contact with kins Appellant Brief of had knew that he family, no one else even house, selling the Watkins and After disappeared. City Atlantic to celebrate Siegel went to to use identi- Siegel continued Watkins’s marriage. appar- Watkins upcoming their stopped death. She ty well after his and heavily City, in Atlantic ently drank checks, Security deposit of his direct Social emergency him an room Siegel took (and address checks mailed to her had the they Maryland. returned to Wat- when box) City, in Ellicott and post later a office hospital. was admitted to the Wat- kins bank ac- in various deposited the checks Siegel was his hospital told kins staff Siegel access. which she had counts to fiancée, that she Siegel told the staff but annuity to receive Watkins’s continued housekeeper, simply caregiver his or was card new credit opened and she payments, was Although fiancée. Watkins not his years name several in accounts Watkins’s time, person, place, in oriented his death. sensitive after hospital staff to be appeared well, wealthy a claimed that was alive and Siegel Siegel, had dated Eric Watkins broker, a living Pennsylvania a time in 1992. in woman commercial loan moving in that before relationship resumed fits and starts named Ruth. She said The 1995, earlier, May Siegel Pennsylvania years in while was still some six June By eight involved with Watkins. June had lived with her for about death, the shortly after relation- selling Siegel Watkins’s months after his house. said flower, again Siegel full ship for him that she cashed Watkins’s checks 1998. Not and Eric married December a finan- gambler because he was and had spare Eric Siegel did not surprisingly, problems impossible cial that made it stole her fraudulent schemes. She checking account. in- him to have The directly from his financial accounts money vestigators finally they told in his name and incurred substantial debt had happened knew what Watkins. accounts and loans through credit about Siegel repeatedly investiga- While told knowledge. which Eric had no When Sie- every- that she wanted to tell them tors light, came to Eric chose to gel’s actions provided them with thing, she never (which amounted good make on her debts death, except details about Watkins’s $300,000) report than to about rather Sie- way you say happen didn’t “[i]t gel police. family later told think.” J.A. 103. members that she came home one after- daughters own also became vic- sprawled noon and found Watkins across money tims of her crimes. took with a cord around his neck. the bed daughter given that her Jennifer had payments, to make car and Jennifer’s car B.
eventually repossessed. Siegel used identity daugh- that of her Jennifer’s Siegel in indicted open credit accounts and ter Amanda charging her with seven counts of convert- accounts, then defaulted on those thus de- checks, Security ing Jack Watkins’s Social ratings. credit stroying daughters’ (West see 18 U.S.C.A. Supp.2008); *7 daughters’ Siegel sometimes used fraud, see 18 U.S.C.A. six counts of bank cashing identities and bank accounts when (West 2000); § identity one count of Security and annu- Watkins’s Social checks (West theft, see 18 U.S.C.A. 1028 2000 & § ity payments years in the after his death. fraud, see mail Supp.2008); two counts of 1341; § 18 U.S.C.A. and two counts of January nearly years seven af- fraud, § murdered, wire see 18 U.S.C.A. 1343. The Virginia ter Watkins was law government charged Siegel also with mur- body enforcement officials identified his dering him prevent Watkins to from re- military through fingerprint records. The fraud, see 18 U.S.C.A. porting her Virginia sought help officials from investi- 1512(a)(1)(C); § impeding and with an offi- gators Security with the Social Adminis- by cial tration, investigation transporting quickly Wat- who determined Sie- lines, see body kins’s across state gel receiving had been Social Watkins’s 1512(c)(2)(West Supp.2008). U.S.C.A. Security checks since his death. investigating Although After a few months of and the substantive criminal watching inspectors all in- Siegel, postal charges premised and an were on conduct Watkins, agent approached Siegel volving FBI the indictment al- after she Jack Security leged part Siegel’s had retrieved Social as “scheme and Watkins’s post Siegel’s check from her office artifice to misconduct box. She defraud” husbands, daugh- agreed Siegel initially involving be interviewed. her three Evidence, regard- Charged Other Crime Butcher. and Jack ters, Mayberrys, the forth in the conduct set include less of whether did not indictment the And while subject was the of sub- allegations those thefts the wallet about allegations counts. As for the Un- stantive criminal and convictions Siegel’s state-court led to Evidence, gov- the charged Crime sentences, Other government the probationary were contended that those crimes ernment notifying Sie- filed a motion trial before of the indicted scheme to part an intrinsic and seek- of the wallet-theft gel Uncharged Other and that the defraud present that evidence ing permission was therefore admissible. in limine Crime Evidence a motion Siegel filed at trial.3 contended Alternatively, government the from government seeking preclude Crime Evidence was rele- that the Other any trial of the Other at presenting establish, among things, Sie- Evidence, sought vant to Siegel also Crime killing and that gel’s in motive for allegations surplusage to strike therefore Evidence was Charged Other Other Crime about the indictment 404(b). under Rule admissible Evidence. Crime granted Siegel’s mo- The district court trial was sched- Siegel’s A week before tions, opening purposes least for held a district court begin, uled government’s case-in- statements and the pending motions. consider the hearing to that the Other chief. The court concluded argued that the Other for Counsel prove would be offered charac- Crime Evidence inadmissible Evidence was Crime fraud and 404(a), see to commit evidence, Siegel’s propensity Fed.R.Evid. ter of the evidence could that introduction argued that counsel 404(b). by Rule As prohibited therefore including allegations Rule 404 not avoid Evidence, Charged Other Crime Crime Charged Other the evi- that because the court concluded there- Counsel the indictment. admissible, allegations dence was allegations argued that fore that misconduct indictment about be Evidence should Charged Other Crime surplusage. stricken as that the should be the indictment and from stricken pre- precluded government should that while explained The district at trial Other senting might be “rele- the Other Crime Evidence. very expansive way,” J.A. vant in a defrauding of her the mail the evidence argued “and all daughters Siegel husbands under which wire fraud statutes *8 to the 1993-94 prior that occurred things proof of a “scheme charged required was unduly preju- inflammatory, period_is government The artifice to defraud.” or dicial, rise to a waste of give certain to twenty- is single, had a contended that proba- time, cumulative and its it is [and] various vic- to defraud year long scheme outweighed by its significantly that it was tive value is argued tims. The 424-25. effect.” J.A. prejudicial ... unfair allega- in the indictment to include entitled that “the case its view expressed that The court scope full setting forth the tions the mur- been indicted is that should have scheme, allegations of the including the Evi- “Charged Other Crime in- ment as the evidence of fraud 3. We will refer to dence,” Evidence that volving than Jack Watkins as Other Crime victims other and the When neces- "Other Crime Evidence.” as the in the indictment not mentioned was the Other sary clarity, we will refer to "Uncharged Crime Evidence.” Other alleged in the indict- Crime Evidence that involving Mr. and the II. der case Watkins defrauding of Mr. and the related Siegel’s claim We first consider banks, company insurance and the Social jurisdiction govern that we lack over the thefts, Security that’s [and] Administration appeal. right to government’s ment’s going try.” the case we’re J.A. 426. appeal ruling an adverse in a criminal case ruling It appears the court’s (West by § is controlled 18 U.S.C.A. partially by least driven the court’s con- Supp.2008). Section 3731 authorizes the length trial. The court cern about the appeal an order Siegel’s and chil- suggested husbands suppressing excluding or evidence or re- might guilt, feel amount of be- dren some quiring property the return of seized in they effectively cause enabled a criminal not proceeding, made after going police crimes before put jeopardy the defendant has Watkins was murdered. The court stated been family that if Siegel’s finding and before the verdict or on an indictment or information. loving, forgiving, had been less less less ..., maybe understanding we wouldn’t Siegel argues Id4 that the district court’s today be here in federal court a mur- preliminary ruling only decision was place der case. This case is not the with actually thus did not have the effect of respect persons all expiate those suppressing excluding evidence. their differences. This is not the forum therefore district contends court’s go path just for that.... I down this appealable order is not 3731. We why clearly point very out would be disagree. likely an enormous waste of time to permit to come in out, ex-husbands here over Siegel points As the district court days days days the course of repeatedly rulings indicated that its were likely what I understand is to be hours preliminary and change could as the trial testimony.... Clearly, and hours of we See, e.g., progressed. (indicating J.A. 423 open up panoply the whole of issues that the district court “wait until [it] mind, relating to the defendant’s state of hears the evidence so as to make a better health, knowledge her mental his of it. informed, more reasonable decision about he her for protecting Was this reason or really surplusage what and what is that reason or some other reason? And not”); (“Now respect J.A. 426-27 thing can same be said about the what the un- Government describes as the husbands, ex-husbands. Same conduct, charged the Court does not in- thing daughters. can be said about the tend at this time to admit of such family It’s not a law It’s a case. murder [Depending things evidence.... on how case. go, I’m not foreclosing the Government J.A. 427-28. I persuading seriously me. doubt persuade the Government will me. But
Believing that rulings the district court’s *9 totally I’m not severely hampered ability prove foreclosing possibility its the the charges against Siegel, government persuade the that the Government will me to interlocutory appeal. filed this admit evidence of ... no more than one requires 4. proceeding.” gov- Section 3731 also the United a States fact material in the The attorney certify to the district court "that complied ernment has with the certification appeal purpose delay the is not taken for of requirement in this case. proof and that the evidence is a substantial of
315 incidents.”). the appeal of dis government’s that the The theft the wallet ... of by rulings is authorized trict court’s however, order, while de- court’s district in would § To otherwise 3731. conclude gov- the precluded preliminary, as scribed ruling ap from district sulate the court’s the any of Oth- referring to from ernment review, frustrating rather than thus pellate statements opening in er Crime § 3731. purposes the of See furthering that evidence any of presenting and from Horwitz, 1101, 622 F.2d States v. United Moreover, the case-in-chief. during its Cir.1980) (2d govern (permitting 1104-05 that would made it clear district court’s conditional appeal ment to district the close of only the issue reconsider after testimony government wit ruling that By that case-in-chief. government’s the unless the suppressed would be nesses however, trial, would jeopardy in the point immunity to granted also cer government attached, see, e.g., United long since have witnesses, govern which tain defense (4th 521, Osteen, 526 v. States “[I]f it would not do: ment insisted Cir.2001), would be government suppress evidence decision to judge’s ap- an pursuing from statutorily prohibited acquittal re judgment and a incorrect (permitting § 3731 18 U.S.C.A. peal. See sults, jeopardy double will principles of only if excluding evidence of orders appeal a government appeal, a situation prevent after the defen- “not made the order designed pre section 3731 was which jeopardy”). in put has been dant circumstances, it would vent. Under “to re enacted 3731 was Section to hold in formalism pure be an exercise to Government statutory barriers all move ap- order is not the district court’s whenever appeals and to allow appeals juncture.”); United States pealable at this States permit,” (3d United Helstoski, 511, Constitution 576 521 Cir. v. F.2d 1013, 332, 337, Wilson, 420 95 S.Ct. v. U.S. 1978) (“Section designed to allow 3731 was by (1975), statute L.Ed.2d 232 prosecutions are ... to insure appeals construed “liberally terms must be pre its own by erroneous unduly restricted not 18 U.S.C.A. purposes.” evidence.”), its aff'd, to effectuate trial decisions exclude has been sworn jury Because no 61 L.Ed.2d 442 U.S. S.Ct. case, clause Jeopardy (1979). in Double this government’s preclude not
clearly does III. ruling And the district court’s appeal. government question prevents the govern without turn now We in case-in-chief sub its presenting the district court ment’s contention significant establishing evidence Evi excluding stantial the Other Crime by erred alleged scheme of the fraudulent Rules of Evi portion the Federal Under dence. “[ejvidence crimes, indictment. wrongs, in the government dence, prove reconsidered the char if the district court Even or acts is admissible at in issue, it would to show action the court stated order person acter of a present Fed.R.Evid. permit conformity most therewith.” 404(b). evidence, however, may “be thefts. of one of wallet Such decision, purposes, such though couched for other court’s admissible district intent, motive, prepa terms, effectively opportunity, proof therefore preliminary or ab ration, identity, knowledge, large portion plan, finally suppressed a Id. The or accident.” intended to of mistake sence the evidence only to evi inquiry applies circum Rule these trial. Under present *10 to that are “extrinsic concluding dence of acts stances, difficulty we have no 316 United, Chin, they inextricably charged.”
the one States v. sic when are intertwined (4th Cir.1996). part single in- or both acts are of a criminal 83 F.3d “[A]cts episode necessary or the other acts were alleged trinsic to the crime do not fall (inter- 404(b)’s preliminaries charged.” to the crime under Rule limitations on admissi- omitted)). quotation nal marks ble evidence.” Id. at 87-88. argues The that the Other view, In our at least some of the conduct Evidence involves crimes that were underlying the Other Crime Evidence is part Siegel’s twenty-year scheme to properly viewed as intrinsic to the Wat- support gambling by defrauding habit Siegel kins-related counts with which available, anyone family be it or friends. charged. example, For evidence of Sie- contends that the conduct gel’s Siegel, against crimes Eric and the described Other Crime crimes, scope provide of those im- charged was intrinsic to the crimes and portant government’s context that the Other Crime Evidence therefore charge Siegel murdered to Watkins subject is not to the limitations of Rule prevent discovering report- him from 404(b). And even if the Other Crime Evi- ing By Siegel her crimes. the time had dence involved crimes that should be resources, exhausted Watkins’s financial crimes, viewed charged as extrinsic already she had re-established her rela- the government argues that the evidence Eric, tionship with her future husband. was nonetheless admissible under Rule Eric’s wealth made him a much more at- 404(b). attentions, target tractive so however,
Siegel, contends that fraudu- way she needed to find a to end her rela- (in lent acts committed some instances tionship with jeop- Watkins that would not years) before she even met Jack Watkins ardize her freedom her access to Eric’s involving victims with no connection to financial Siegel simply resources. If had Watkins cannot considered intrinsic to away walked Watkins order to charged Watkins-related crimes in the Eric, pursue relationship Wat- indictment. Siegel insists that the Other longer place kins—-who no had his own solely Crime Evidence (or was offered to show any personal live possessions, for that propensity her bad character and her matter) have had little choice but —would commit fraud and that the district court long-neglected to turn to his friends or properly therefore excluded the evidence family family for help. His and friends 404(b). under Rule certainly would almost have discovered explained Siegel to Watkins what had
A. him, done to placed which would have Sie- of uncharged gel great already conduct is risk. had failed not “other crimes” subject in her efforts to have institution- Watkins uncharged alized, Rule 404 if the surely conduct “arose and it would have been diffi- out of the same series of pull transactions as cult for off a marriage to offense, the charged or if Eric if living [evidence she were with another man. uncharged necessary against conduct] com Evidence of her crimes Eric would plete story provide jury the crime on trial.” thus necessary with the Kennedy, United States v. government’s 885 context for the claim that (4th Cir.1994) (internal quotation marks murdered so that she could omitted); Chin, safely alterations see also move forward in her relationship (“Other F.3d at 88 criminal acts are intrin- Cooper, with Eric. See States v. United *11 260, 271 Cir.2007) Young, 248 F.3d States v. (4th (explaining United 658, 663 F.3d Cir.2001). (4th other crimes Evidence of “provide[s] acts that of bad evidence that nonetheless is charges” is criminal to the relevant context re- consideration without which in- purposes, for other admissible admissible v. 404); States to, Rule United of quirements clude, proof are not limited but Cir.2000) (4th 259, 268 intent, Lipford, motive, preparation, 203 F.3d opportunity, (evidence acts admissible criminal identity, of other or knowledge, absence plan, 404(b) 404(b) to Rule where regard without or accident. Rule mistake story” complete rule, admitting “served all an inclusive viewed as crimes). charged except crimes acts evidence of other or only criminal prove tends to which reasons, thefts the wallet For similar disposition. guilty state Siegel pleaded which added; and internal as intrinsic citations (emphasis viewed Id. properly are also omitted). Siegel was still marks To be admissi- quotation crimes. Watkins-related 404(b), when Wat- evidence must be these crimes Rule ble under probation on “(1) Thus, relation- than charac- Siegel’s to an issue other relevant kins was killed. (3) (2) reliable.” ter; necessary; freedom personal Eric ship with Wells, ability herself v. 163 F.3d to extricate depended on her United States Cir.1998) (internal (4th marks quotation relationship with Watkins without from the Queen, omitted); crimes. v. reporting her also United States discovering and see him (4th Cir.1997). 991, 997 132 F.3d however, certain, all of are not We con- Evidence involves agree with the Other Crime We as intrinsic to can viewed Evidence was rele duct that that the Other Crime charged. char than bad Siegel’s crimes with which vant to issues that Sie- apparent it is not Evidence is most example, For acter. Other Crime The Mayberrys establishing gel’s defrauding directly relevant inextricably gov inter- were killing Butcher Jack Watkins. Jack motive for Watkins, defrauding of 18 U.S.C.A. charged Siegel under twined with ernment regard 1512(a)(1)(C), gov to Butcher required with which and her conduct only not at blush she killed Mayberrys does first prove and the ernment to any of him for the Watkins, relevant context for provide but she killed seem anyone with which Sie- him else preventing crimes or purpose the Watkins-related not, however, infor need charged. We law enforcement gel providing piece each she had whether the federal crimes definitively determine mation about may be The Other Crime of the Other Crime committed. which histo to the crimes for had an extensive as intrinsic viewed showed that explain finan significant As we has been indicted. that inflicted ry of fraud Crime below, that the Other victims. Given we conclude on numerous cial losses 404(b), conduct, Siegel fraudulent scope Evidence is admissible of her in- prison into the term inquiry lengthy face a likely which makes further if unnecessary. obligations divide restitution trinsic-extrinsic and substantial Evi caught. The Other she were B. jury a basis give a thus dence would very strong Siegel had concluding that prohibits evidence “Rule quiet. See keeping interest acts to show bad crimes or bad of other Willoughby, v. States law.” United to break the propensity character *12 318 (2d Cir.1988) (in case where the defen- the government’s theory would undercut of charged were of explanation
dants with obstruction the case and its of her motive justice, partic- evidence of defendants’ killing for Watkins. The evidence that ipation robbery in a was admissible under Siegel gambling started while married to “highly proba- because it was her husband and to began first steal mon- motive, intensity tive of their and the of ey from him to cover her losses would motive, prevent that to seek to certain therefore be admissible as evidence of Sie- testifying at their trial for witnesses gel’s motive. robbery”). Accordingly, because the Oth- The evidence of the wallet thefts showed er Crime Evidence established the extent Siegel that was in real danger going of to Siegel’s of fraudulent scheme and ex- jail again, given if arrested that she was Watkins,
plained
killing
her motive for
probation
still on
for those crimes when
Other Crime Evidence was relevant to an Watkins was killed. The evidence that
Siegel’s
issue other than
character.
Mayberry repeatedly
John
confronted Sie-
gel
repayment
$3,000
about
of a
loan and
The Other Crime Evidence like
Siegel repaid Mayberry
that
around the
Siegel’s
oper
wise tended to show
modus
same
that
typical
time
she induced Butcher to
pattern
ands Her
was to obtain
provide her with
precise
that
amount of
personal
per
information of another
son,
money
that Siegel’s
that
indicates
house of
use
information to obtain credit
name,
verge
collapsing,
in that
cards was on the
thus
person’s
and take whatever
magnifying
possibility
steps
necessary
prevent
proba
were
that her
per
to
tion would be revoked.
learning
son from
The evidence that
about
new accounts
Siegel
until
became violent
her
engaged
it was too late. She
in that
when
second
pattern
go
police
husband threatened to
defrauding
when
each of her hus
bands,
again
daughters,
depth
Siegel’s
shows the
fear of
Mayberrys,
Jack
Butcher, and,
course,
going
jail.
showing
The evidence
Jack Watkins.
daughters
Because the
defrauded her own
Other Crime Evidence estab
operandi,
lished a modus
it
husbands tends to show the hold that
is admissible
404(b).
gambling
under Rule
had on
and tends to
See United States v.
refute
Tanner,
(4th
any suggestion that
Cir.1995);
knew about
Queen,
opened
the accounts
see also
acter or
F.3d
Aramony, 88
v.
States
United
C.
relevant,
Cir.1996) (“To
evi-
(4th
be
1377
sought to be admitted
Evidence
tendency to
any
only to have
need
dence
404(b)
satisfy Rule
must also
under Rule
that is of
of
fact
the existence
make
value
probative
that the
requirement
403’s
of the
the determination
to
consequence
“substantially
must not be
of the evidence
than
probable
or less
probable
more
action
preju
unfair
danger
the
of
outweighed
(internal
the evidence.”
be without
it would
issues, misleading
dice,
the
or
confusion of
omitted)).
marks
quotation
undue
by considerations of
jury, or
the
Crime Evidence
The Other
time,
presenta
or
delay,
of
needless
waste
meaning of our
the
necessary within
also
Fed.R.Evid.
cumulative evidence.”
tion of
Wells,
404(b)
163
See
jurisprudence.
Rule
403;
Queen,
F.3d at 997.
132
see
404(b),
Rule
purposes
For
F.3d at 895.
indicated
district court
Although the
acts is
bad
crimes or
evidence
should be
Evidence
the Other Crime
that
of the
part
if
is “an essential
necessary
unfairly preju-
403 as
under Rule
excluded
part
trial,
it furnishes
or where
on
crimes
why it
dicial,
not explain
did
the court
Queen, 132
crime.”
of the
the context
unfairly prejudi-
to be
found
(internal
marks
quotation
at 998
F.3d
before
considering the record
cial. After
above,
omitted).
1512
explained
As
the district
us,
nothing
support
to
we find
prove
charge requires
issue.
on this
court’s determination
purpose
killed
being re
crimes from
preventing
is
Evidence
Crime
The Other
have ex
As we
police.
ported
case, “just
certainly prejudicial
is im
Crime Evidence
plained,
Other
prejudi
guilt is
suggesting
all evidence
motive, an
establishing Siegel’s
portant
v.
United States
to a defendant.”
cial
charge.
§ 1512
of the
element
essential
Cir.2006).
(4th
Williams,
724, 730
was therefore
Evidence
Crime
The Other
however, is
prejudice,
general
kind of
That
404(b).
of Rule
necessary
purposes
of other
to warrant exclusion
enough
for admissi
Evi
requirement
admissible
relevant,
final
evidence.
wise
404(b)—that the evidence
403
bility under Rule
Rule
under
may
excluded
dence
be
Wells,
reliable,
163
see
crimes be
unfairly prejudicial
of other
is
only if the evidence
in this
likewise satisfied
at
prejudice
F.3d
895—is
then, only if the unfair
and, even
purposes
is rehable for
Evidence
case.
val
substantially outweighs
probative
preposterous
“unless it is so
Rule
“Evidence
See id.
ue of
evidence.
by a rational
not be believed
that it could
ex
and thus should
unfairly prejudicial
Aramony,
juror.”
instructed
properly
a
there is
403 when
cluded
(internal
marks
quotation
F.3d
1378
jury
88
of a
the emotions
risk that
genuine
omitted).
Evi
Crime
Although the Other
behavior, and
irrational
be excited
will
go
-willingto
shows
dence
proba
disproportionate to
risk is
this
money she
get
shocking lengths
Id. at
offered evidence.”
tive value of the
addiction, it is
gambling
needed to fuel
altera
(internal
quotation marks
unbelievable.
preposterous
in no sense
omitted).
Crime
the Other
Because
tion
conduct
fraudulent
describes
the Other
we conclude that
Accordingly,
conduct
substantially similar to
that is
requirements
satisfies the
Siegel engaged
defrauding
in while
Although we sympathize with the dis-
Watkins,
Jack
we cannot conclude that
trict court’s
about
length
concern
introduction of the
complexity
trial,
Other Crime Evidence
of the
agree
we
with the
jurors
create
substantial risk that
government that the district court exclud-
would be excited to irrational behavior.
ed the Other Crime Evidence without suf-
circumstances,
Under these
we
ficiently
conclude
considering
importance
the district
its
government’s
abused
discretion
evidence to the
case. While
by determining that Rule
required
ex
the government
easily prove
could
*14
clusion of the Other Crime Evidence.
identity
See
fraud and
charges
theft
against
433,
States v. Kelly,
United
510 F.3d
437
without
Evidence,
the Other Crime
(4th Cir.2007) (“[W]e
1512(a)(1)(C)
defer
§
to the district
the
charge, as we have
balancing
court’s Rule 403
...
previously discussed,
unless it is
requires
govern-
arbitrary
an
or irrational exercise of
ment
prove
dis
that Siegel killed Watkins
omitted)),
(internal quotation
cretion”
marks
purpose
of preventing Watkins or
for
—
denied,
U.S.-,
rt.
128 S.Ct.
others from giving law enforcement offi-
ce
1917,
(2008);
321 V. the wholesale basis sufficient a vides Evidence, Crime the Other have summarize, exclusion that we we conclude To is explained, have that, as we appeal government’s over jurisdiction admissible, probative. highly relevant, decisions pre-trial court’s the district from Colomb, F.3d v. Evi- States Crime trial the Other United from to exclude Cf. Cir.2005) (“Although decisions (5th the indictment to strike dence may Crime Charged Other under Rule allegations court makes a admitted, that the Oth- proof is also conclude We whether Evidence. indirectly affect Evidence, individually and as independent an er Crime provide does not Rule whole, is admissible excluding otherwise-admissible ground us, can- before and, the record at least on carefully evidence.”). Accordingly, after Finally, under Rule not be excluded Crime Other the nature considering determination that Other our given to conclude Evidence, are constrained we admissible, we conclude by granting erred district that the *15 striking by erred court that the district the preclude limine motion in Siegel’s Crime Charged Other the allegations of Other introducing the from indictment. from the Evidence trial. Evidence at Crime reasons, foregoing the Accordingly, deci- court’s the district hereby reverse we IV. Evidence excluding Other the Crime sion allegations striking decision and its the district briefly to address pause We from the Crime Evidence Charged Other the surplusage as strike decision to court’s case for the indictment, we remand and the setting forth of the indictment portions trial. dis- Evidence. Crime Charged Other allega- the AND REMANDED to strike REVERSED court’s decision
trict its conclusion directly from tions flowed Judge, KISER, District Senior be should Evidence Crime the Other in dissenting part: in concurring part concluded excluded; court the district opinion which II of the part I concur inadmissi- was Evidence Crime the Other over jurisdiction has the court holds the then struck ble, the court § 3731. U.S.C. pursuant appeal on the touching allegations indictment however, III, because part I dissent inadmissible. deemed the district not review majority does the Other our determination Given un- evidentiary rulings factual and judge’s admissible Crime of discre- standard —abuse proper der the under Rule 404(b) excludable and not tion. striking no basis is simply there I. Other Charged allegations See admissibility the indictment. on the ruling Evidence from Crime (“A by Williams, proffered motion at 733 F.3d Other in the indict- forth indictment set from the surplusage strike to make required ment, if is clear that the trial only granted should Fed.R.Evid. determinations. not relevant factual allegations are particular a 104(a). applicability “The prejudi- inflammatory and are charge and upon depends often rule of evidence and altera- (internal marks quotation cial.” To extent ... of a condition existence omitted)). tion inquiries factual, that these are judge relationship periodically interrupted acts Often, however, trier of fact. they before finally married 1998. De- rulings on evidence call for an evaluation fendant took over Mr. existing legally terms of a set standard ... opened ones, accounts and new resulting decisions, too, These are made $300,000 in approximately in losses to 104(a) judge.” advisory Fed.R.Evid. com- Siegel. Mr. repaid He these debts. mittee’s note. 5. 1994: After Jack gave Butcher
First a judge has decide whether the $3,000 loan, her a she defaulted on the “other crimes” are charged intrinsic to the loan unsuccessfully attempted to use Second, offense. if the “other crimes” are Mr. personal Butcher’s information to intrinsic, admissibility then must be take out a loan. Siegel hysteri- became tested under Federal Rules of Evidence cal when he go threatened to 404(b) and majority 403. As the recog- police. nizes, the trial court found that the Other 1997: stole mail from the Crime Evidence properly was not part of mailbox of James and Janice Lee and alleged scheme as set forth in the opened various credit accounts using charged counts, nor was it admissible un- their identities. der Rules and 403. Viewing these 7. 1996: Siegel daughters’ used her rulings on an abuse of standard, discretion open identities to credit accounts. She I would largely uphold the district judge’s *16 also used their identities to cash benefit determinations. checks made out to Watkins. majority out, As the points all of the The government sought also to intro- charged offenses, including murder, the duce Uncharged Evidence, Other Crime involve Jack Watkins. relations which consisted of four separate incidents began with him 1994 in and her fraudulent in which Siegel stole acquaintance’s an conduct regard with to him continued wallet and used the information found (even through June though therein to defraud the victim. These inci- was allegedly murdered on or May about dents occurred 1996). January between 1993 and The Charged Other Crime Evi- December Siegel 1994. pled guilty to dence sought to be solely introduced these crimes and received a suspended part as of the “scheme or artifice to de- probation, sentence and which was still fraud” elements the of mail and wire fraud when effective she murdered Watkins. charges. This evidence included: 1. Siegel 1968-1985: opened credit
accounts identity under the of her first II. husband, Charles Kucharski. A.
2. Siegel 1985-1993: defrauded Ted Giesendaffer, second husband. The trial judge found that these other When confronted she became violent. crimes properly were not part of a com- 3. Siegel 1992-1994: had May- John mon scheme with charged crimes, the but berry sign an her, auto loan for then they rather were discrete acts of used that information to take out an Indeed, fraud. only the thing in common $3,000. unrelated loan for She repaid with charged the crimes was the element the loan in 1994. of deception, but that can be said of all 1992-2003: met Eric Sie- fraudulent conduct. Where the incidents gel, her third husband in 1992. The were temporally separated, used different ruling this Because majority. the unrelated means, were otherwise discretion, the judge’s district the within judge does conduct, a district charged it. overturning in errs majority to al- refusing discretion abuse his not other these present government low See the scheme. part as
incidents C. States, 2 F.2d v. United McLendon Other Crimes Testing the Cir.1924) (“it yet (6th has never 660-61 404(b), of Rule requirements against to defraud’ ‘scheme that the thought been that if offered found judge district succession in the mere found ... could be it would its case-in-chief they save as swindles, unrelated of diverse exception to the qualify under stage.”). a common had judge found that Instead, district Rule. his discre- abuse judge did The district to demonstrate only used be it would Sie- evidence regard tion prohibit— is meant Rule which cash daughters’ identities gel used It propensity. character criminal clearly intrinsic This is checks. Watkins’s rul- court’s remembered must be must therefore charged conduct opening statement only to ing went be admissible. case-in-chief. government’s and the of whether question open left B. after be admissible evidence denomi- chose to That the course, if Of on her defense. put aof part as crimes these nate avail- would be evidence testify the should scrutiny them not free does scheme purposes. impeachment able for quali- they as to whether judge by the trial 404(b), the Other Under it free does Nor the scheme. fy part if it is admissible may also Rules constraints from the in- motive, opportunity, “proof used as *17 that finds majority 403. The identi- knowledge, tent, plan, preparation, explain adequately not did court trial the accident.” mistake of absence ty, or unduly to be the evidence he found why the Other Crime opines that majority disagree. I Rule prejudicial op- these of several fits under Evidence may be that evidence provides these, the ma- each analyzing In tions. to cause it finds the court if excluded have reached would why it jority explains the issues confusion prejudice, “unfair the district than conclusion a different delay.” undue by considerations ... or why However, explained it is never judge. district ruling the his explaining In an abuse decision judge’s the district “[WJhile concerns: to these judge spoke of discretion. and rele- interesting evidence very that’s argues opinion majority the Initially, ... way expansive very in a vant Evidence Crime of the Other inflammatory, that much it is that is satisfied Court killing motive Siegel’s goes toward rise to give is certain unduly prejudicial, killed theory, Siegel this Under its Watkins. time, cumulative and is waste him from prevent only not outweighed Watkins significantly is probative value the crimes about government telling prejudicial and unfair by prejudicial its him, also but against perpetuated she had trial Because 424-25. J.A. effect.” Evidence Crime the Other then because Evi- Crime Other judge found the Other Because discovered. would be relevance, his conclu- legal has little dence have affected Crime government of the from that differs sion prison term and restitution obligations, she defrauding of Eric should admit- had an enhanced try motive to to keep the ted. The overlap their relationship with Other Crime Evidence hidden. relationship Watkins and her incentive of having access to Eric Siegel’s analysis, its majority relies on substantial provide financial resources am- (2d Cir.1988). Willoughby, ple proof of motive. In Willoughby the defendants were charged with justice obstruction of Second, Siegel’s suspended sentence and seeking prevent witnesses from testify- probation which stemmed from the wallet ing at their trial for robbery. The chal- thefts enhanced her motive to prevent lenged evidence, which the district judge Watkins from police going because admitted, was the defendants’ participation she would have separate received a in that robbery. The court concluded penalty. increased This motive is consid- “when a defendant has been charged with erably more concrete and thus pro- more attempted or actual justice obstruction of bative than the theoretical motives ad- with respect given crime, to a evidence of by vanced for the rest of the underlying crime and the defendant’s her earlier crimes. The judge district rec- part in it is admissible to show the motive ognizes this theory of says relevance and for his efforts.” Id. “depending things on how go, I’m not fore-
Willoughby inapplicable closing pres- from persuading ent First, case for ... two reasons. me I’m totally not the dis- foreclosing pos- trict court in that case admitted sibility the chal- the Government will persuade lenged evidence and me the circuit to admit one, of at least of no concluded this was not an more than abuse of one I say should of the wallet Second, discretion. challenged theft evi- incidents.” J.A. 426. The motive is dence here part is not by of the underlying created the wallet thefts them- crime. analysis selves, This would be but appropri- by instead suspended sen- ate if the challenged tence probation. evidence was Sie- Due to height- gel’s defrauding of ened probative Watkins. As dis- value evidence, of this above, cussed however, the judge, district district judge having recognized the valid that the purpose concluded Other evidence, of this abused his dis- was not part scheme, cretion excluding thus not it.
part of the underlying crime. It is true Next, majority determines that the that the Other Crime may have Other Crime Evidence is admissible under been relevant to Siegel’s enhance ” motive “identity” operandi “modus excep- to Watkins, silence but the district court 404(b). tion to Rule Evidence of this type found prejudice that sufficiently out- should be admitted where the crimes are weighed probative value of such evi- similarly unique and distinctive. See Unit- dence. The already had a (4th ed v. Haney, States solid motive and the cumulative nature of Cir.1990) (noting evidence demon- this evidence was disproportionately prej- crime.”). a “signature strated The modus udicial. Thus it was an not abuse of dis- operandi that majority points to here cretion to exclude it. is obtained her person- victims’ The district judge did abuse his information, al discre- used that information to tion, however, by failing to admit credit, two obtain steps took to conceal her pieces of evidence under theory. this fraud. These are the routine steps First, Siegel’s relationship and subsequent identity theft crime. There is nothing suf- Benkahla, 530 v. States United dence.” un- evidence admit this to unique ficiently Cir.2008). (4th The same 300, 309 404(b). F.3d to exception this der of evidence. for the exclusion apply would reversing the justifies majority also apply Oth- to majority has failed exclusion judge’s court Because district could of review because level discretion of the abuse er Crime I judge, defense dissent. potential refute of district rulings used to evidence example, For strategies. cov- husband first from stole be admitted should debts gambling
er her Wat- defense potential to refute were caused financial difficulties kins’s Every defen- problem. gambling own his no provide to elect the right dant has all, defense POWELL, Petitioner- Lee David its burden. meet required still be Appellant, govern- for the Therefore, improper it is used is which evidence present ment v. not has which defense attack a solely to Director, QUARTERMAN, Nathaniel an certainly It presented.
yet been Jus- Department Criminal Texas here, to, exclude of discretion abuse Divi- Institutions tice, Correctional during presented being evidence such sion, Respondent-Appellee. case-in-chief. government’s
No. 06-70008. III. Appeals, Court States United in- was the excluded Whether Fifth Circuit. a fact charged scheme trinsic of the district judgement July committed re- must be 104 and under Rule stan- discretion an abuse under viewed Box, Inc. v. Travelers Rigid Burt
dard. 83, 92 Corp., 302 F.3d Casualty Property evi- Cir.2002). excluded (2d Whether Rules under admissible dence an abuse is also reviewed and 403 standard. discretion evidentiary relevance “Judgments of fundamentally a matter are prejudice *19 are judges trial management, trial we than of a trial pulse closer much neces- discretion broad be and can ever standard them. sarily accorded deference counsels therefore review a criminal courts. of trial discretion a conviction not vacate we will appeal, acted judge the district find that we unless evi- admitting irrationally in arbitrarily or