10-2416-cr
United States v. Thompson
                                 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 Asummary 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 30th day of September, two thousand eleven.

PRESENT:
            ROGER J. MINER,
            PIERRE N. LEVAL,
            PETER W. HALL,
                        Circuit Judges.
_____________________________________________

UNITED STATES OF AMERICA,
                                         Appellee,

                            v.                                                     No. 10-2416-cr

NIGEL OSARENKHOE and PHILBERT GORRICK,
                               Defendants,

STAY THOMPSON, a/k/a Stay Daniels,
                                         Defendant-Appellant.

______________________________________________

FOR DEFENDANT-APPELLANT:                         JONATHAN EDELSTEIN, Law Office of Jonathan
                                                 Edelstein, New York, New York.

FOR APPELLEE:                                    WILLIAM J. HARRINGTON, Assistant United States
                                                 Attorney (Justin S. Weddle, Assistant United States
                                                 Attorney, of counsel) for Preet Bharara, United
                                                 States Attorney for the Southern District of New
                                                 York, New York, New York.
       Appeal from a judgment of the United States District Court for the Southern District of

New York (Jones, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant-appellant Stay Thompson appeals from a judgment of conviction entered on

June 8, 2010, following a jury trial, in the Southern District of New York convicting her of one

count of conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349 and one count of money

laundering in violation of 18 U.S.C. § 1957. On appeal, Thompson contends that the district court

erred (1) in admitting a document purported to be her 2000 tax return under Federal Rule of

Evidence 404(b) and, (2) by refusing to charge the jury that it is permissible to minimize one’s tax

liability as long as one does not violate the law. We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

I.     Discussion

       A.      Admission of Unsigned 2000 Tax Return

       With respect to the admissibility of the 2000 tax return, Thompson makes four arguments.

First, Thompson argues that the government’s “eve-of-trial” notification that it intended to use the

2000 tax return was not reasonable and prejudiced her ability to assemble contrary proof. See

Fed. R. Evid. 404(b) (requiring “reasonable notice in advance of trial”). Second, Thompson

contends that the 2000 tax return was insufficiently authenticated because it was not signed. For

the first time on appeal, Thompson next argues that the tax return is not “probative” of any proper

404(b) issue. Finally, Thompson contends that because the trial turned on issues of credibility,

the error in admitting the tax return was not harmless.


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       In determining whether to admit “other act” evidence under Rule 404(b), district courts in

this Circuit follow our “inclusionary approach,” meaning such evidence may be admitted under

Rule 404(b) “for any purpose other than to demonstrate criminal propensity.” United States v.

LaFlam, 369 F.3d 153, 156 (2d Cir. 2004) (per curiam) (internal quotation marks omitted). In

determining whether a district court properly admitted “other act” evidence, we consider “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. We review a

district court’s decision to admit evidence of prior bad acts under Rule 404(b) for abuse of

discretion, “which we will find only if the judge acted in an arbitrary and irrational manner.”

United States v. Lombardozzi, 491 F.3d 61, 78–79 (2d Cir. 2007).

       Leaving aside the issues of notice and authentication for the moment, there is no question

that the 2000 tax return was admissible under Rule 404(b). It was offered for a proper purpose,

that is, to provide a basis from which the jury could infer the defendant’s fraudulent intent and

absence of mistake in her improper receipt of adoption subsidy payments. Because Thompson

denied she had knowingly defrauded New York City’s Administration for Children’s Services by

accepting the adoption subsidy payments, evidence going to her intent and absence of mistake was

relevant to the issue in dispute. In addition, the probative value of the tax return was not

substantially outweighed by any prejudice to the defendant, particularly because the district court

gave the jury a limiting instruction at the time the evidence was introduced.

       The remaining issues to address are Thompson’s arguments that the government failed to

give her reasonable notice and that the tax return was not properly authenticated because it was

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unsigned. Beginning with the reasonableness of the government’s notice, the pertinent section of

Rule 404(b) states that “upon request by the accused, the prosecution in a criminal case shall

provide reasonable notice in advance of trial . . . of the general nature of any such evidence it

intends to introduce at trial.”

        Assuming Thompson made the requisite request for notice, the government’s notice that it

intended to introduce the 2000 tax return was reasonable under Rule 404(b). Thompson has not

demonstrated that the government was purposely withholding information from her or failed to

discover the information due to its own negligence in conducting its pre-trial investigation.

Rather the record reveals that after discovering the dependents listed on the 2000 tax return had

never lived with Thompson or even knew who she was, the government informed Thompson

within hours of making that discovery on July 31, 2009. See United States v. Valenti, 60 F.3d

941, 945 (2d Cir. 1995) (holding that notice was reasonable where government provided defendant

documents the very day it obtained them). Furthermore, the government did not move to admit

the tax return until August 6, 2009, giving Thompson more than five days to prepare. Thompson

has not indicated why the efforts she argues she would have made had she had more time to

prepare―namely, locating her filed 2000 tax return or subpoenaing her co-workers to testify about

the Turbo Tax demonstration―required more than five days to accomplish; indeed, the defense

never requested an adjournment to undertake those steps. Id. (finding significant the defendant’s

failure to “seek a continuance or other postponement to study the documents.”) Thompson,

therefore, has not established that she was prejudiced by the timing of the government’s notice.

        Thompson’s argument that the 2000 tax return was never properly authenticated also fails.

Under Rule 901(b)(4), a document can be duly authenticated, and thus attributable to Thompson,

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based on “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics,

taken in conjunction with circumstances.” As we have stated, “[w]ith respect to a document

attributed to the defendant, the prosecution need only provide a rational basis from which the jury

could infer that the document did, in fact, belong to him.” United States v. Maldonado-Rivera,

922 F.2d 934, 957 (2d Cir. 1990). Because the tax return appeared to be Thompson’s personal

federal tax return on its face and it was located in her possessions among other financial

documents, including her tax returns from other years that she did not dispute were hers, it was

properly attributed to Thompson, and the district court did not err in admitting it.

       B.         Jury Instruction on Limiting Tax Liability

       Thompson contends that it was error for the district court to refuse to charge the jury that

there is nothing wrong or unlawful about the “mere act of minimizing one’s tax liability.”

Thompson believes such an instruction was necessary due to the government’s cross-examination,

which focused on her low tax liability relative to her reported income.

       We review de novo a claim of error with respect to jury instructions, reversing “where,

viewing the charge as a whole, there was a prejudicial error.” United States v. Quattrone, 441

F.3d 153, 177 (2d Cir. 2006) (internal quotation marks omitted). The defendant “bears the burden

of showing both that the jury instruction [s]he requested ‘accurately represented the law in every

respect and that, viewing as a whole the charge actually given, [s]he was prejudiced.’” United

States v. Smith, 198 F.3d 377, 386 (2d Cir. 1999) (quoting United States v. Abelis, 146 F.3d 73, 82

(2d Cir. 1998).

       In seeking the requested jury instruction, Thompson never presented the court with any

specific language, thus making it difficult to assess the legal “correctness” of her proposed charge.

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Instead, she pointed the court to two cases: Commissioner v. Dyer, 74 F.2d 685 (2d Cir. 1935) and

Estate of Rolin v. Commissioner, 588 F.2d 368 (2d Cir. 1978), which Thompson contended

required the court to charge the jury “to the effect that it is legally permissible to minimize one’s

tax liability so long as no specific tax laws were broken.” Without delving into the “correctness”

of the theoretical jury charge, Thompson’s challenge fails because she cannot establish that she

was prejudiced. Thompson’s argument misunderstands the thrust of the government’s cross

examination. When eliciting testimony about her tax deductions, the government was not

attacking her credibility by showing that she reduced her tax burden to almost nothing. The

cross-examination attacked her credibility by suggesting to the jury that the particular deductions

she claimed were fraudulent. Her proposed instruction, even if correct on the law, was not

relevant to the theory underlying the government’s line of questioning, and she was not prejudiced

by the district court’s refusal to give the instruction.

II.     Conclusion

        We have considered all of Thompson’s remaining arguments and conclude they are

without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                           FOR THE COURT:
                                                           Catherine O=Hagan Wolfe, Clerk




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