United States District Court, District of Nebraska
FINDINGS AND RECOMMENDATION
Thomas D. Thalken, United States Magistrate Judge.
This matter is before the court on the defendant’s, Chet Lee West, Motion to Suppress Evidence, Argument and Testimony by the Government (Filing No. 87). The government filed a brief (Filing No. 88) in response to the motion.
On July 17, 2013, the Grand Jury for the District of Nebraska returned an Indictment charging the defendant with three counts of income tax evasion in violation of 26 U.S.C. § 7201. See Filing No. 1 - Indictment. After several motions and requests for extensions, this matter is set for trial on October 7, 2014. See Filing No. 82 - Order. The deadline to file pretrial motions was January 31, 2014. See Filing No. 33 - Order.
On August 18, 2014, the defendant filed the instant motion to suppress. See Filing No. 87 - Motion. The defendant seeks to suppress evidence of any occurrence prior to December 31, 2006, because such occurrences lie outside the six-year statute of limitation set forth in 26 U.S.C. § 6531. Id. The defendant argues the limitation period expired December 31, 2012. Id.
In response, the government contends the defendant’s motion is untimely. See Filing No. 88 - Response. Additionally, the government argues the defendant’s reliance on 26 U.S.C. § 6531 lacks merit. Id. The government argues the cited statute is a procedural limitation on filing a criminal charge and does not affect the admissibility of relevant evidence, even if the evidence predates December 31, 2006. Id.
The deadline to file pretrial motions was January 31, 2014. See Filing No. 33 -Order. The defendant filed his motion on August 18, 2013. See Filing No. 87 - Motion. “If a party fails to file a pretrial motion before [the pretrial motion] deadline, the party waives that issue.” United States v. Salgado-Campos, 442 F.3d 684, 686 (8th Cir. 2006) (citing Fed. R. Crim. P. 12(e)). The defendant’s motion is well beyond the pretrial motion deadline and the defendant has not shown good cause for the late motion. Therefore, the defendant has waived the suppression issue and the motion to suppress should be denied. However, to the extent this motion is the defendant’s “Motion In Limine regarding the government’s Supplemental Notice of Intent to Introduce Rule 404(b) Evidence (Filing No. 62), ” the court will consider the merits of the defendant’s motion.
Assuming, arguendo, the defendant’s motion is timely, the defendant’s motion should be denied on the merits. 26 U.S.C. § 6531 does not bar the admission of evidence. See United States v. Ngari, 559 F. App’x 259, 272 (5th Cir. 2014) (“The statute of limitations is a defense to prosecution, not a rule of evidence. As long as the prosecution is timely instituted, the statute of limitations has no bearing on the admissibility of evidence.”) (internal citations omitted); Fitzgerald v. Henderson, 251 F.3d 345, 365 (2d Cir. 2001) (same); Black Law Enforcement Officers Ass’n v. City of Akron, 824 F.2d 475, 482-83 (6th Cir. 1987) (same); United States v. Ashdown, 509 F.2d 793, 798 (5th Cir. 1975) (same); Silvers v. United States, 4:09CV1976, 2011 WL 4635617, at *12 (E.D. Mo. Oct. 5, 2011) (“It is well settled that the statute of limitations bars stale claims or charges, not evidence.”).
The admissibility of evidence turns on its relevance, and not solely the date of the evidence. Federal Rule of Evidence 401 provides that “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” See Fed.R.Evid. 401. “Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court.” See Fed.R.Evid. 402. Furthermore, evidence of prior bad acts may be admissible. See Fed.R.Evid. 404(b). Prior bad act evidence is subject to a four-factor admissibility test:
The evidence must: (1) be relevant to a material issue raised at trial, (2) be similar in kind and close in time to the crime charged, (3) be supported by sufficient evidence to support a finding by a jury that the defendant committed the other act, and (4) not have a ...