19-1854
United States v. Bayuo

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
17th day of June, two thousand twenty.

Present:    ROSEMARY S. POOLER,
            REENA RAGGI,
            RAYMOND J. LOHIER, JR.,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                Appellee,

                         v.                                                  19-1854

REBECCA BAYUO,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:        Anne E. Railton, Goodwin Procter LLP (Richard M. Strassberg,
                                Valerie A. Haggans, Amanda B. Protess, on the brief), New York,
                                N.Y.

Appearing for Appellee:         Cecilia E. Vogel, Assistant United States Attorney (Mollie
                                Bracewell, Elizabeth Hanft, Assistant United States Attorneys, on
                                the brief), for Geoffrey S. Berman, United States Attorney for the
                                Southern District of New York, New York, N.Y.

Appeal from the United States District Court for the Southern District of New York (John G.
Koeltl, J.).

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     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

         Rebecca Bayuo appeals from the June 13, 2019 judgment of the United States District
Court for the Southern District of New York (Koeltl, J.) following her conviction after a jury
trial on twelve counts of filing fraudulent tax returns in violation of 26 U.S.C. § 7206(2); one
count of theft of government funds in violation of 18 U.S.C. §§ 641 and 2; one count of
aggravated identity theft in violation of 18 U.S.C. §§ 1028A(a)(1), (b), and 2; and two counts of
subscribing to false tax returns in violation of 26 U.S.C. § 7206(1). We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.

        Bayuo’s principal argument on appeal is that the district court violated her due process
right to a fair trial and abused its discretion in admitting into evidence, near the end of the
government’s case-in-chief, a chart summarizing dependents who appeared on 40 tax returns
filed by Bayuo on behalf of multiple clients. The chart showed that dependents reappeared on
unrelated returns, tending to undermine the defense theory, advanced in cross examination, that
Bayuo was not responsible for falsifying dependent information. The chart was not identified as
evidence prior to trial. The dependents’ names on the chart appeared on tax returns admitted into
evidence during her trial, and on tax returns that were not provided to the defense until the
evening before the chart was admitted into evidence. All of the information on both sets of tax
returns was contained on a spreadsheet the government provided to defense counsel prior to trial.

        “With respect to a claimed due process violation, we review the district court’s factual
determinations for clear error, while the constitutional significance of those findings, including
the ultimate determination of whether due process has been violated, is reviewed de novo.”
United States v. Epskamp, 832 F.3d 154, 160 (2d Cir. 2016) (internal quotation marks, brackets,
and citation omitted). Bayuo argues that the government’s failure to notify her of its intention to
seek admission of the chart in advance of trial was a violation of her due process rights, as it left
her unable to meaningfully prepare for trial and damaged the defense she had been presenting to
the jury over the course of the trial. We have previously acknowledged that “substantial[ly]
prejudic[ial]” nondisclosure of evidence under Federal Rule of Criminal Procedure 16 can
deprive a defendant of her right to a fair trial. United States v. McElroy, 697 F.2d 459, 465 (2d
Cir. 1982).

        There was no constitutional violation here. Although the government did not identify the
chart as a potential exhibit before trial, see Fed. R. Crim. P. 16(a)(1)(E)(ii), the information on
the chart was included on a spreadsheet provided to the defense three weeks before trial. Some,
although not all, of the information came from tax returns that were identified pretrial and
admitted into evidence. As the district court recognized, “some tax returns in evidence already
include dependents for more than one taxpayer.” App’x at 1481. To the extent the chart included
information from the tax returns not admitted in evidence, these returns were available for
defense inspection before the chart was admitted.

       Bayuo’s reliance on United States v. Bortnovsky, 820 F.2d 572 (2d Cir. 1987), is
unavailing. There, the defendants were accused of submitting false insurance claims for losses


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that allegedly occurred during burglaries. Id. at 573. We held that the district court’s failure to
compel bills of particulars left the defendants wholly unable to present a defense because “the
Government [failed] to reveal crucial information: the dates of the fake burglaries and the
identity of the three fraudulent documents.” Id. at 574. Here, however, the superseding
indictment identified the tax returns the government planned to use at trial, and those tax returns
included reused dependents. Thus, Bayuo was not substantially prejudiced by the admission of
the chart so as to have been denied due process.

        Equally unavailing are Bayuo’s arguments that the district court abused its discretion in
admitting the chart. See United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009). Insofar as
Bayuo contends that the chart included uncharged crimes, “[t]he Second Circuit has adopted an
‘inclusionary’ approach to other act evidence under Rule 404(b), which allows such evidence to
be admitted for any purpose other than to demonstrate criminal propensity.” United States v.
LaFlam, 369 F.3d 153, 156 (2d Cir. 2004). “To determine whether a district court properly
admitted other act evidence, the reviewing court considers whether (1) it was offered for a proper
purpose; (2) it was relevant to a material issue in dispute; (3) its probative value is substantially
outweighed by its prejudicial effect; and (4) the trial court gave an appropriate limiting
instruction to the jury if so requested by the defendant.” Id.

        All the factors are satisfied here. The chart was admitted for the purpose of showing that
the fake dependents were unique to Bayuo, that is, not provided by Bayuo’s clients. It was
plainly material to contesting Bayuo’s defense that the clients provided the information regarding
the dependents, and it was plainly probative. Finally, the district court provided limiting
instructions, both immediately after the chart’s introduction into evidence and when it instructed
the jury prior to deliberations. The district court therefore did not abuse its discretion in
admitting the chart.

        We have considered the remainder of Bayuo’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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