     Case: 16-30027       Document: 00513673592         Page: 1     Date Filed: 09/12/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                     No. 16-30027                              FILED
                                   Summary Calendar                    September 12, 2016
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

RICHARD ALLAN SCOTT,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:15-CR-13-1


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       A jury found Richard Allan Scott guilty of four counts of aiding and
assisting in making and subscribing a false tax return, in violation of 26 U.S.C.
§ 7206(2).     Prior to trial, the Government noticed its intent to introduce
evidence of false tax returns prepared by Scott that were not charged in the
indictment (the uncharged returns), as well as evidence of Scott’s prior nolo
contendere plea to identity theft in state court, including the probation terms


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                  No. 16-30027

prohibiting his preparing tax returns. On motions in limine, and pursuant to
Federal Rule of Evidence 404(b), the district court determined the probative
value of the uncharged returns and probation terms was not outweighed by
their prejudicial effect. United States v. Scott, Case No. 3:15-cr-00013-RGJ-
KLH, 6–7 (W.D. La. 2015).        Scott contends the district court abused its
discretion by admitting the evidence concerning the uncharged returns and
tax-preparation bar.
      “A district court’s evidentiary rulings are typically reviewed for abuse of
discretion.” United States v. Pruett, 681 F.3d 232, 243 (5th Cir. 2012). This
review is “heightened” in a criminal proceeding, and the evidence must “be
strictly relevant to the particular offense charged”. Id. (citation omitted). Rule
404(b) admissions are analyzed under the two-prong test outlined in United
States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978).         “First, it must be
determined that the extrinsic offense evidence is relevant to an issue other
than the defendant’s character. Second, the evidence must possess probative
value that is not substantially outweighed by its undue prejudice and must
meet the other requirements of rule 403.” Id.
      Scott concedes the relevance of the uncharged returns, and he does not
dispute the relevance of the probation conditions. Instead, he focuses on the
second prong of the Beechum test, contending the probative value of the
evidence was substantially outweighed by its prejudicial effect.
      The court noted the uncharged returns possessed similar characteristics
to the charged returns, including fictitious employers, false dependents,
inflated wages, and inflated withholdings.        Our court has affirmed the
admission of a “substantial” amount of uncharged conduct under Rule 404(b)
when the uncharged offenses were the same type of crime as the charged
offenses, and “did not overwhelm the charged conduct”. See Pruett, 681 F.3d



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                                  No. 16-30027

at 244–45. Moreover, as the Government notes, the uncharged returns were
not the type of evidence that plays on the jury’s emotions. See id. at 245.
      In addition, Scott claims the uncharged-returns evidence was
cumulative. Because he did not raise this issue in district court, review is only
for plain error. United States v. Lewis, 796 F.3d 543, 546 (5th Cir. 2015). The
Government showed the uncharged returns were relevant to Scott’s intent, a
disputed issue at trial. There is no plain (“clear or obvious”) error.
      The other contested evidence, the probation conditions, was relevant to
Scott’s motive, inter alia, for forging names on the returns; it was also highly
probative of the contested issues of knowledge, intent, and identity. Therefore,
the Government demonstrated reasonable necessity for introducing the terms
of Scott’s probation judgment. See United States v. Baldarrama, 566 F.2d 560,
568 (5th Cir. 1978).    And, the district court gave limiting instructions to
minimize the prejudicial effect of the evidence of Scott’s prior conviction and
probation judgment. This court has deemed such instructions “significant” in
allaying undue prejudice. Beechum, 582 F.2d at 917.
      AFFIRMED.




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