United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS.
58, 60, 67, & 84 ]
Y. Pearson, United States District Judge
before the Court are the following motions in limine: (1)
Defendant's Motion in Limine and/or Motion for
Determination of the Admissibility of Expert Testimony
Offered by Christopher O'Hagan (ECF No. 58); (2)
Defendant's Motion in Limine to Exclude Evidence (ECF
No. 60); (3) the Government's Motion in Limine to
Exclude Certain Testimony of Defendant's Expert Gary
Gruver (ECF No. 67); and (4) Defendant's Motion
in Limine to Exclude Testimony from Charles Frazier (ECF
No. 84). The motions are fully briefed.
reasons that follow, Defendant's Motion in Limine and/or
Determination (ECF No. 58)is granted in part,
Defendant's Motion to Exclude Evidence (ECF No.
60) is denied in part, and the
Government's Motion in Limine to Exclude Certain
Testimony of Defendant's Expert Gary Gruver (ECF No.
67) is granted.
Motion in Limine to Exclude Evidence of Expert Testimony
Offered by Christopher O'Hagan
argument in support of his motion in limine is two-fold.
First, he argues that O'Hagan is not qualified to testify
as an expert under Federal Rule of Evidence 702.
ECF No. 58 at PageID #: 517-18. Second, he argues
that the testimony O'Hagan would offer is irrelevant.
Id. at PageID #: 518. Specifically, he contends that
testimony on the reasons behind the IRS moving Attevo's
tax payments to quarters other than the ones Attevo specified
when making the payments would prove inconsequential, because
it only matters that the IRS moved the payments and the
Government has conceded that fact. Id.
response, the Government argues that IRS agents frequently
testify as expert witnesses in tax cases. ECF No. 68 at
PageID #: 667-68. The Government also argues that the
parties dispute “the timing, application and
importantly Attevo's ratification of the 2010 payments in
question.” Id. at PageID #: 669. Because of
this dispute, the Government reasons, O'Hagan's
testimony is relevant, especially as he will offer testimony
as to why the IRS applied Attevo's payments in the manner
that it did. Id.
reply, Defendant reiterates his argument as to
O'Hagan's qualifications. ECF No. 70 at PageID #:
676-77. He also argues that, even if there is a factual
dispute about Attevo's payments, an expert is unnecessary
to testify on the timing and application of the payments and
that O'Hagan had no involvement in the meetings related
to the alleged ratification, so he is not well-suited to
testify as an expert on that matter. Id. at PageID
401 of the Federal Rules of Evidence defines relevant
evidence as that “having any tendency to make a fact
more or less probable than it would be without the
evidence” and “of consequence in determining the
action.” Generally, relevant evidence is admissible,
unless it is not. See Fed.R.Evid. 402.
O'Hagan's testimony about the application of tax
payments is relevant. To be delivered in a way helpful to the
trier of fact, such testimony is typically delivered by an
expert witness. See Fed.R.Evid. 702. The Government
has indicated that O'Hagan will testify as to the tax
consequences of Attevo's employment taxes. The Sixth
Circuit has permitted IRS agents to testify about an
action's tax consequences. See, e.g. United States v.
Monus, 128 F.3d 376, 386 (6th Cir. 1997) (holding that
IRS agent's expert testimony on tax consequences from a
company diverting funds was proper testimony to help jury
determine issue of fact, because jury still had to determine
whether defendant stole funds); see also United States v.
Frantz, No. CR 02-1267(A), 2004 WL 5642909, at *19
(C.D.Cal. Apr. 23, 2004) (holding that testimony on tax
treatment of payments to another corporate entity
“would not usurp” fact-finder's role, because
the finder of fact still had to determine whether defendant
“committed an affirmative act to evade taxes and that
he did so willfully.”).
Court finds the subject of O'Hagan's proposed
testimony is relevant and proper expert testimony. Before
O'Hagan may testify, however, the Court will conduct a
voir dire on his qualifications.
Motion in Limine to Exclude Evidence
seeks to exclude: (1) evidence that Defendant failed to
account for and/or pay employment taxes for any quarters
prior to the first quarter of 2010; (2) evidence that
Defendant paid other creditors while failing to account for
and/or pay employment taxes; (3) evidence of Defendant's
income and personal expenditures prior to and during the time
period in the indictment; and “salacious allegations
that the [Defendant] engaged in affairs and hired
escorts.” ECF No. 60 at PageID #: 549; see
also ECF No. 84.
support of his first argument, Defendant contends that
non-payments prior to the first quarter of 2010 are
irrelevant and not related to his alleged non-payments in
2010, because of the IRS's reclassification of payments
designated for the first and third quarters of 2010. Id.
at PageID #: 551-53. In support of the second and third
arguments, Defendant avers that the IRS's actions make
money spent on things other than tax payments a non-issue,
because Defendant made proper payments for seven of eight
quarters between first quarter of 2010 and the first quarter
of 2012, if the IRS had applied the payments as Attevo had
designated. Id. at PageID #: 553-54. Defendant seeks
exclusions of all three categories of evidence under Federal
Rules of Evidence 402, 403, and 404. ECF No. 60 at PageID #:
549. (Defendant's final argument is more fully addressed
in Section IV, below.)
opposition, the Government retorts that Defendant's prior
non-payment of taxes is admissible circumstantial evidence of
willfulness. ECF No. 69 at PageID #: 674. The
Government also incorporates analysis it included in its
trial brief on these arguments. Id. at PageID #:
673. In its trial brief, the Government provides
authority to support the admissibility of a defendant's
personal expenditures in tax cases, as well as authority on
using a defendant's past tax payment history to prove
willfulness. ECF No. 59 at PageID #: 538-43.
reply, Defendant claims that evidence of an extramarital
affair is unfairly prejudicial, and therefore, evidence of
spending related to extramarital affairs should not be
admitted. ECF No. 71 at PageID #: 682-83. He also
argues that evidence of discretionary spending is irrelevant,
because that spending took ...