In re Snyder

         Proceedings: OPINION TESTIMONY (dkt. 105, filed March 30, 2016) DEFENDANT’S MOTION IN LIMINE TO EXCLUDE IMPROPER

          CRIMINAL MINUTES - GENERAL

         I. INTRODUCTION AND BACKGROUND

         In October 2014, a federal grand jury charged defendant Taquan Gullet (“defendant”) with two counts of submitting to the United States Treasury Department, through the Internal Revenue Service (“IRS”), claims against the United States for payment of fraudulent tax refunds with knowledge that such claims were false, fictitious and fraudulent in violation fo 18 U.S.C. §§ 287, 2(b) (Counts One and Two). Indictment at 1. The grand jury also charged defendant with two counts of knowingly filing in a public record a false lien and encumbrance against the property of two IRS employees on account of their performance of their official duties, in violation of 18 U.S.C. §§ 1521, 2(b) (Counts Three and Four). Id. at 3.

         On March 30, 2016, defendant, who was represented by counsel at the time, filed the instant motion in limine to exclude improper opinion testimony. Dkt. 105 (“Motion”). On April 1, 2016, the government filed an opposition to the instant motion. Dkt. 109 (“Opp’n”).

         On March 31, 2016, defendant filed a request for a hearing, pursuant to Faretta v. California, 422 U.S. 806 (1975), to determine whether defendant may represent himself in this matter. Dkt. 107. On April 4, 2016, the Court conducted a Faretta hearing and granted defendant’s request to proceed in this matter in pro per. Dkt. 113. Trial in this matter is currently scheduled to begin on July 19, 2016.

         On, the Court held oral argument on the instant motion. Having carefully considered the parties’ arguments, the Court concludes as follows.

         II. DISCUSSION

         In brief, the government alleges in the instant action that defendant filed a false claim for a tax refund for the 2009 tax year, retaliated against IRS employees when the IRS determined that his 2009 tax return was frivolous and did not pay the tax refund, and then filed another false claim for a tax refund for the 2010 tax year despite being informed by the IRS that his prior claim was frivolous. See generally Indictment. In May 2015 and August 2015, the government produced interview memoranda summarizing the anticipated testimony and relevant experience of IRS employee Shauna Henline, whom the government intends to designate as the Custodian of Records for the IRS in this matter. See Motion, Ex. 2-3. Through the instant motion, defendant seeks to exclude Henline’s testimony regarding the IRS’s policies and procedures as improper opinion testimony under Federal Rule of Evidence 702 and Federal Rule of Criminal Procedure 16(a)(1)(g). Defendant also moves to exclude all evidence regarding the IRS’s Frivolous Return Program and the correspondence defendant received indicating that his 2009 tax return was frivolous on the basis that it is unduly prejudicial under Federal Rule of Evidence 403.

         A. Whether the Proffered Testimony is Expert Opinion

         As to whether Henline’s testimony should be excluded as improper expert opinion, defendant contends that he has been “left to guess . . . what Ms. Henline’s opinion testimony might be, ” but the government’s representations regarding her expected testimony “strongly suggest[] that the government may well seek to elicit opinion testimony from her.” Motion at 1-2. The government contends that Henline will not be providing expert testimony under Rule 702. Rather, she will be testifying regarding her personal knowledge and as a custodian of records regarding defendant’s tax returns, the correspondence that the IRS received from defendant, and the various notices that the IRS provided to defendant.^[1]

         More specifically, the government states that Henline will (1) offer testimony regarding the basic workings of the income tax reporting, payment, and refund processes, and the tax forms used in those processes (e.g., W-2, 1099, and 1040); (2) testify as the IRS’s custodian of records regarding defendant’s 2007, 2008, 2009, and 2010 tax returns; related tax information received from third parties regarding defendant’s income (such as a W-2 received from defendant’s employer); and the correspondence that the IRS received from defendant and notices that the IRS provided to defendant; (3) testify regarding the entries on defendant’s tax returns and the specific IRS forms that defendant submitted in connection with his 2009 and 2010 tax return (such as a Form 1099-OID and Form 1099-A); (4) testify regarding the process by which the IRS responds to frivolous correspondence from taxpayers, including how the IRS classifies tax returns or correspondence as frivolous, and describe the different letters that the IRS uses to respond to frivolous documents from taxpayers; and (5) testify that the IRS’s records indicate that defendant’s 2009 and 2010 tax returns were deemed to be “frivolous” and thus assigned to the Frivolous Returns Program.

         The government further specifies that Henline will not be testifying regarding some of the topics that defendant lists as improper--specifically, Henline (1) will not be testifying regarding any particular type of promotion scheme and will not be addressing whether defendant’s tax returns shared any characteristics with a typical promotion scheme or strawman redemption theory; (2) “will also not be offering an opinion as to whether defendant’s tax returns were in fact false, ” but rather will testify “regarding the IRS’s policies and procedures regarding frivolous returns and the Frivolous Returns Program, and correspondence that defendant received from the Frivolous Returns Programs relating to his 2009 tax return.” Opp’n at 8.

         Because Henline’s potential testimony does not, based upon the government’s proffer, appear to constitute expert opinion, the Court DENIES without prejudice to renewal defendant’s motion to exclude such testimony as improper expert opinion.

         B. Whether All Evidence Regarding the IRS’s “Frivolous Return Program” Should be ...