United States District Court, Eastern District of Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION AND ORDER
Danny C. Reeves United States District Judge
This matter is pending for consideration of Defendants Michael Tackett’s and Charles Tackett’s in limine motions to exclude certain evidence from being offered by the United States during trial. [Record Nos. 55, 60] Having considered the parties’ respective positions, the Court will deny the relief requested.
All defendants have been charged with conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. Additionally, Defendants Charles Tackett, Michael Tackett, and Anne Grace McGuire have been charged with three counts of wire fraud in violation of 18 U.S.C. § 1343. [Record No. 1] The November 6, 2014, Indictment charges that, in or about September 2009 and continuing through in or about August 2010, the defendants knowingly and willfully conspired to obtain money and property from insurance carriers by obtaining insurance on classic vehicles under the fraudulent pretense that the vehicles had been fully restored and were worth significantly more than their actual value, and then filing claims following the loss of the vehicles. [Id.] The Indictment alleged that the vehicles would be purchased from a co-conspirator or third party for significantly less than the renovated value and, shortly thereafter, insurance coverage would be obtained based on estimates from Harold Auto Body for work that had not been performed. After the vehicles were destroyed in fires, the defendants reported the damage and sought to collect money from the insurance providers through telephone communication.
On December 12, 2014, the United States filed a notice of intent to offer during trial evidence that, between September 2008 and March 2009, Charles Tackett purchased four automobiles and fraudulently insured them with Safeco Insurance Company. The government alleges that, in obtaining the insurance, Charles Tackett submitted estimates from Harold Auto Body for restorations that never occurred. [Record No. 39] Further, in October 2008, Charles Tackett obtained homeowners insurance from Kentucky Fair Plan, designed to provide basic property and casualty insurance. On May 23, 2009, a fire destroyed the house and the four cars. Subsequently, Charles Tackett reported the losses to the insurance providers. In June 2009, he was paid $70, 638.00 by Safeco for the loss of the four vehicles and $175, 895.00 by Kentucky Fair Plan for the loss of the house. [Id., pp. 4–5] The United States seeks to offer this evidence as inextricably intertwined background evidence or, in the alternative, as evidence admissible under Federal Rule of Evidence 404(b). [Record No. 64] Defendants Michael Tackett and Charles Tackett have moved in limine to exclude the proffered evidence.
A. Background Evidence
The United States seeks to offer the above-described evidence as inextricably intertwined with evidence that is relevant to the crimes charged. [Record No. 64, p. 5 n.1] In limited circumstances, the government may introduce evidence of past conduct if the conduct is sufficiently tied to the presently charged offense. The Sixth Circuit has explained that:
[p]roper background evidence has a causal, temporal or spatial connection with the charged offense. Typically, such evidence is a prelude to the charged offense, is directly probative of the charged offense, arises from the same events as the charged offense, forms an integral part of a witness’s testimony, or completes the story of the charged offense.
United States v. Marrero, 651 F.3d 453, 471 (6th Cir. 2011). When background (or res gestae) evidence is presented in this way, it is not subject to the strictures of Rule 404(b). United States v. Adams, 722 F.3d 788, 810 (6th Cir. 2013).
The Sixth Circuit further explained the distinction between acts that are intrinsic to the offense charged-and thus not subject to Rule 404-and extrinsic “other acts, ” which are subject to the rule, as follows:
[w]hen the other crimes or wrongs occurred at different times and under different circumstances from the offense charged, the deeds are termed “extrinsic.” “Intrinsic” acts, on the other hand, are those that are part of a single criminal episode. Rule 404(b) is not implicated when the other crimes or wrongs evidence is part of a continuing pattern of illegal activity. When that circumstance applies, the government has no duty to disclose the other crimes or wrongs evidence.
United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995).
Background evidence includes “those other acts that are inextricably intertwined with the charged offense or those acts, the telling of which is necessary to complete the story of the charged offense.” United States v. Joseph, 270 F. App’x 399, 405 (quoting United Statesv. Hardy, ...