U.S. v. Johnson

• Decision Date: 12 November 1980
• Docket Number: No. 79-5272,79-5272
• Citation: 634 F.2d 735
• Parties: 80-2 USTC P 9783, 7 Fed. R. Evid. Serv. 84 UNITED STATES of America, Appellee, v. Eileen Eldorado JOHNSON, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 735

634 F.2d 735

80-2 USTC P 9783, 7 Fed. R. Evid. Serv. 84

UNITED STATES of America, Appellee, v. Eileen Eldorado JOHNSON, Appellant.

No. 79-5272.

United States Court of Appeals, Fourth Circuit.

Argued Aug. 19, 1980.

Decided Nov. 12, 1980.

S. W. Tucker, Richmond, Va. (Hill, Tucker & Marsh, Richmond, Va., J. Hugo Madison, Norfolk, Va., on brief), for appellant.

John S. Edwards, U. S. Atty., Roanoke, Va. (Faye S. Ehrenstamm, Asst. U. S. Atty., Roanoke, Va., on brief), for appellee.

Before RUSSELL, WIDENER and PHILLIPS, Circuit Judges.

JAMES DICKSON PHILLIPS, Circuit Judge:

Convicted by a jury of federal income tax evasion under 26 U.S.C.A. § 7201, Eileen Eldorado Johnson unsuccessfully moved in the district court for a new trial, on the grounds that evidence of her overstated Medicaid billings was improperly admitted and that government counsel's reference to her "fraudulent" Medicaid forms unduly prejudiced the jury. We affirm, holding that the extrinsic acts evidence was properly admitted under Fed.R.Evid. 404(b) and that no prejudice resulted from the "fraudulent" reference in view of the trial court's corrective action.

I

Johnson is a medical doctor, who inherited her practice from her deceased brother. She filed tax returns for 1972, 1973, and 1974, which understated her income by approximately $120,000.00 and her tax liability by approximately $31,000.00. Her defense at trial was inadvertence: she had had nothing to do with preparing her tax returns because she cared nothing for money and chose, instead, to devote her time to the demanding personal needs of her patients. To support this defense she produced seven local witnesses-three physicians, a school board member, a public school teacher, a mortician, and a minister-who testified to her truthfulness, honesty, and compassion, and to the busy nature of her practice.

In attempted rebuttal of this portrait of Johnson as an altruistic healer of the sick, whose concerns lay elsewhere than attending to her financial interests and resulting legal responsibilities, the government called Robert Pemberton, an auditor for the U.S. Department of Health, Education & Welfare. Pemberton testified at length about his investigation of Johnson's billings for Medicaid services for 1976-78. His study showed that Johnson reported four times as many services per patient as other Virginia doctors. Johnson did not object to the general course of Pemberton's testimony. In fact, the following day Johnson again took the stand in order to testify that she had not signed the Medicaid billings upon which Pemberton had based his investigation. During cross-examination, government counsel asked Johnson, "Who would have received the benefit of all the fraudulent forms for Medicaid that were filed?" Johnson's counsel objected and moved for a mistrial because use of the term, "fraudulent," unduly prejudiced the jury. The trial judge overruled the motion, directed government counsel to rephrase the question, and gave the jury a cautionary instruction.

II

We hold that Pemberton's testimony was admissible under Fed.R.Evid. 404(b), which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The first sentence of Rule 404(b) brings forward the traditional rule that extrinsic acts evidence is inadmissible solely to prove that defendant is a bad character and, therefore, likely to have committed the crime charged. See, e.g., Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); United States v. Woods, 484 F.2d 127 (4th Cir. 1973); Lovely v. United States, 169 F.2d 386 (4th Cir. 1948); Advisory Committee Notes to Fed.R.Evid. 404(b); McCormick, Evidence § 190, at 447 (2d ed. 1972). Extrinsic acts evidence, however, may be admissible for other purposes including those listed in Rule 404(b). The Rule's list is merely illustrative, not exclusive. Wright & Graham, Federal Practice and Procedure: Evidence § 5240, at 469 (1978).

Rule 404(b) of course commits to trial judge discretion the determination whether extrinsic act evidence shall be admitted under its second sentence. In exercising that discretion the judge first must determine if the proffered evidence is relevant to an issue other than the accused's character. If so, then the trial judge must balance the evidence's probative value against the dangers of undue prejudice aroused by this form of evidence. This may concededly pose particularly difficult problems. The Advisory Committee Notes to Rule 404(b) state:

No mechanical solution is offered. The determination must be made whether the danger of undue prejudice outweighs the probative value of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403 (confusion of issues, misleading the jury, undue delay, waste of time, and needless presentation of cumulative evidence).

Within this general guideline for the exercise of trial court discretion, we think the evidence here challenged was properly admitted. The general prohibition contained in the first sentence of Rule 404(b) is designed to prevent prosecutorial overreaching by a means whose obvious...