United States District Court, C.D. California
CHRISTINA A. 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 ...