Taxing Use Of Non-Hearsay Background Testimony

IRS investigative analyst's non-hearsay background testimony (explaining how the defendant tax preparer was identified and referred for investigation) did not violate the Confrontation Clause, FRE 801(c), FRE 404(b), or FRE 403 in United States v. Goosby, 523 F.3d 632 (6th Cir. 2008)

Defendant Goosby, who had a tax preparation business, was prosecuted for preparing fraudulent tax returns. At trial, an IRS investigative analyst provided background on the case, including how the defendant was identified based on “a computer program that allows [the analyst] to review all the returns by a given tax preparer and rank the returns by amount of refund.” In reviewing the returns, the defendant was identified based on “a high ratio for returns prepared by Goosby’s business.” Goosby, 523 F.3d at 635. An investigation commenced and the defendant was charged. After his conviction, the court sentenced him to 46 months in prison.

The case provided an opportunity to review the admissibility of background information offered as non-hearsay under a host of rules and the Confrontation Clause. On appeal, the defendant challenged the admission of the IRS investigative analyst’s testimony as inadmissible under FRE 801(c), FRE 404(b), FRE 403 and the Confrontation Clause.

The circuit affirmed the admission of the background evidence and considered the several challenges raised by the defendant. The background evidence was admissible under FRE 801(c) as non-hearsay to provide background on how the case was initiated and “did not directly implicate the defendant in criminal activity.” Goosby, 523 F.3d at 638.

The background testimony did not violate the Confrontation Clause because the background statements were not “testimonial hearsay” under Crawford v. Washington, 541 U.S. 36 (2004). Goosby, 523 F.3d at 638 (citing Davis v. Washington, 126 S. Ct. 2266, 2273-74 (2006) (“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove pastevents potentially relevant to later criminal prosecution.”)).

The evidence did not implicate FRE 404(b) because the purpose of the “testimony was to provide background information about the investigation, not to discuss the character or prior bad acts of the defendant.” Goosby, 523 F.3d at 638.

Finally, the circuit rejected any challenge to the testimony as unfairly prejudicial under FRE 403 since the defendant “did not raise or renew his FRE 403 objection when [IRS Investigative Analyst] Gibeault testified at trial regarding how quickly he found the sample of fifteen suspicious returns.” Goosby, 523 F.3d at 638 n.1.

As Goosby illustrates, background evidence can be useful to conveniently explain the circumstances of the case without violating the Confrontation Clause or other rules of evidence.

Federal Rules of Evidence