United States v. Douglas J. Burk

912 F.2d 225, 30 Fed. R. Serv. 1082, 66 A.F.T.R.2d (RIA) 5468, 1990 U.S. App. LEXIS 14405, 1990 WL 119553
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 20, 1990
Docket89-3018
StatusPublished
Cited by35 cases

This text of 912 F.2d 225 (United States v. Douglas J. Burk) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Douglas J. Burk, 912 F.2d 225, 30 Fed. R. Serv. 1082, 66 A.F.T.R.2d (RIA) 5468, 1990 U.S. App. LEXIS 14405, 1990 WL 119553 (8th Cir. 1990).

Opinion

WOLLMAN, Circuit Judge.

Douglas J. Burk appeals his convictions for intimidating and impeding the official duties of an Internal Revenue Service (IRS) officer in violation of 26 U.S.C. § 7212(a) and for assaulting an IRS officer in violation of 18 U.S.C. § 111. We affirm.

I.

IRS officer Deborah Barrett was assigned to work on the DEK Electric (DEK) account, a corporation whose principal party was Edmund Burk, Douglas Burk’s father, and in which Douglas was an employee, officer, and director. Douglas was not involved with the books and records of the company and did not know about its tax situation.

In January 1988, DEK entered into a part payment plan with the IRS for employee social security and income tax withholding arrearages, as well as interest and penalties that had accrued. During the ensuing year, however, DEK failed to comply with the plan. Barrett warned Edmund in December 1988 that unless he complied with the plan the IRS would seize corporate assets. In March 1989, the IRS sent a notice of impending seizure to DEK’s corporate address. The notice letters were returned to the IRS unclaimed.

On April 13, 1989, Barrett travelled with Roberta Collett, another IRS officer, to Edmund’s residence to collect DEK’s tax liability or to seize a 1975 Chevrolet utility truck, a DEK corporate asset. They arrived at about 7:30 in the morning. Barrett parked her car in Edmund’s driveway behind the utility truck. Douglas arrived at his parents’ home at about the same time. Another member of the family, Kelly Burk, was also present. After Barrett and Col-lett were admitted to the house, they told Edmund that they were there to collect the money or seize the truck. Edmund became angry, claiming that they were putting him out of business.

As Barrett and Collett prepared to leave the house and tag the truck for seizure, Douglas and Edmund blocked the door. Douglas began yelling obscenities at Barrett and told her that if she and Collett were not women they would “punch” their “lights out.” Douglas approached Barrett with a large wad of money clenched in his fist and said, “Here, you want money, take this money, just take it.” He hit Barrett in the chin with his fist and the money, causing her to lose her balance and step back. Edmund blocked Collett’s path, pushing her back with his stomach, and momentarily took her IRS credentials away from her.

Douglas and Kelly then left the house at their father’s request. Barrett and Collett repeatedly requested to leave the house, but Edmund refused to permit them, saying that he wanted them to review some records. When Barrett and Collett were finally able to leave after about half an hour, Douglas and the utility truck were gone. Barrett’s car had been moved and one of its tail lights had been smashed. A government portfolio she had left in the car containing IRS cash receipts and other items was missing.

The next day, IRS police agents and several officers of the local police department arrived at Douglas’ house to serve a federal arrest warrant on him for assault. After forcing entry into his house, the officers arrested him when he emerged from his bathroom.

*228 Both Edmund and Douglas were indicted for intimidating and impeding the IRS officers and for assaulting them. Edmund pleaded guilty. Douglas went to trial, and a jury found him guilty of both counts. The district court 1 sentenced Douglas to concurrent prison terms of eleven months on each count and one year of supervised release.

II.

Douglas Burk (hereafter Burk) challenges the district court’s admission of evidence concerning his 1982 guilty plea to a peace disturbance misdemeanor charge. The plea stemmed from an incident in which Burk caused alarm to a police officer by threatening to assault him. The jury also learned that Burk had originally been charged with assault for the incident.

Under Federal Rule of Evidence 404(b), evidence of other crimes or acts is admissible if (1) the evidence is relevant to a material issue; (2) the prior bad acts are similar in kind and reasonably close in time to the crime charged; (3) there is sufficient evidence to support a finding by the jury that the defendant committed the prior acts; and (4) the potential prejudice of the evidence does not substantially outweigh its probative value. United States v. Anderson, 879 F.2d 369, 378 (8th Cir.), cert. denied, — U.S. -, 110 S.Ct. 515, 107 L.Ed.2d 516 (1989); United States v. Mothershed, 859 F.2d 585, 588 (8th Cir.1988). A trial court's broad discretion in admitting wrongful act evidence will be disturbed only if the defendant shows that the proof clearly had no bearing on any of the issues involved. United States v. Marin-Cifuentes, 866 F.2d 988, 996 (8th Cir.1989). We view Rule 404(b) as a rule of inclusion, permitting admission of prior act evidence unless it tends to prove only the defendant’s criminal disposition. Mothershed, 859 F.2d at 589. This does not obviate, however, the need to identify the fact or issue to which the similar act evidence is relevant. Id. (quoting United States v. Figueroa, 618 F.2d 934, 939 n. 2 (2d Cir.1980)).

Evidence of prior bad acts is admissible under Rule 404(b) to prove, among other things, intent and absence of mistake or accident. Burk attempted to show at trial that he lacked intent to harm the IRS officers and that any harm he caused was the result of mistake. In his opening statement, Burk’s counsel told the jury that Burk and his family members would testify that although Burk wasn’t certain of whether the money touched Barrett’s face, he had no intention of hurting the IRS officers. Burk did indeed testify that he had not intended to hurt or threaten Barrett. Thus, Burk placed his intent in issue, making the evidence of his prior conviction relevant to a material issue.

With respect to the second requirement of admissibility, we have recently emphasized that “[pjroximity in time and similarity of conduct are only factors that may be considered by the trial judge in deciding whether to admit evidence of prior bad acts; they are not requirements for admission.” U.S. v. Drew, 894 F.2d 965, 970 (8th Cir.), cert. denied, — U.S. -, 110 S.Ct. 1830, 108 L.Ed.2d 959 (1990). Rather than applying an absolute rule for the number of years that can separate offenses, we apply a reasonableness standard, examining the facts and circumstances of each case. United States v. Engleman, 648 F.2d 473

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Bluebook (online)
912 F.2d 225, 30 Fed. R. Serv. 1082, 66 A.F.T.R.2d (RIA) 5468, 1990 U.S. App. LEXIS 14405, 1990 WL 119553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-douglas-j-burk-ca8-1990.