United States v. Gary Wayne Butterbaugh

46 F.3d 1146 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Gary Wayne BUTTERBAUGH, Defendant-Appellant. No. 94-50023. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 5, 1994. Decided Dec. 30, 1994. 1 Before: BROWNING, ALDISERT, * and GOODWIN, Circuit Judges 2 MEMORANDUM ** 3 I. Admissibility of Evidence Concerning 1985 4 The district court did not abuse its discretion by admitting evidence of Butterbaugh's fraudulent conduct in 1985 under Rule 404(b). 1 The cashed checks and Johnson's testimony were sufficient to prove the prior fraudulent activity; because the conduct occurred in the year preceding the charged offense, it was not too remote in time; the prior conduct was essentially identical to that with which Butterbaugh was charged; and the evidence was probative of willfulness, an essential element of the offense of subscribing to a false tax return. See, e.g., United States v. Bergman, 813…