United States v. Siegel

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 07-4551
NANCY JEAN SIEGEL,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(1:03-cr-00393-AMD)

Argued: May 15, 2008

Decided: August 12, 2008

Before TRAXLER and KING, Circuit Judges, and
Jackson L. KISER, Senior United States District Judge
for the Western District of Virginia, sitting by designation.

Reversed and remanded by published opinion. Judge Traxler wrote
the majority opinion, in which Judge King joined. Senior Judge Kiser
wrote an opinion concurring in part and dissenting in part.

COUNSEL

ARGUED: Christine Manuelian, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellant. Andrew
David Levy, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore,
Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United
2 UNITED STATES v. SIEGEL
States Attorney, Tamera Fine, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellant. Jane R. Flanagan, BROWN, GOLDSTEIN
& LEVY, LLP, Baltimore, Maryland; Thomas J. Saunders, Baltimore,
Maryland, for Appellee.

OPINION

TRAXLER, Circuit Judge:

Nancy Jean Siegel is currently under indictment for numerous
fraud-based offenses, including mail and wire fraud, see 18 U.S.C.A.
§§ 1341 & 1343 (West 2000 & Supp. 2008). Siegel also faces a
charge of committing murder to prevent the reporting of her crimes.
See 18 U.S.C.A. § 1512(a)(1)(C) (West 2000 & Supp. 2008). A week
before her trial was scheduled to commence, the district court granted
Siegel’s motion to strike as surplusage allegations in the indictment
about certain crimes that were not the subject of a substantive crimi-
nal count and her motion to preclude the government from introduc-
ing in its case-in-chief evidence about those crimes and other crimes
not mentioned in the indictment. The government appeals. We reverse
the district court’s decisions and remand for trial.

I.

A.

The allegations in the indictment against Siegel and the evidence
forecast by the government in its pre-trial filings establish the follow-
ing.1 Siegel married Charles Kucharski in 1968, and the couple
divorced in 1985. Sometime towards the end of the marriage, Siegel
began gambling. To support her gambling habit, Siegel used Kuchar-
ski’s name and personal information to obtain credit without Kuchar-
1
Because this is a pre-trial appeal, our review of the facts is by neces-
sity limited to the facts the government intends to prove at trial as evi-
denced by the allegations of the indictment and the evidence proffered
by the government in the course of the pre-trial proceedings.
 UNITED STATES v. SIEGEL 3
ski’s knowledge. Siegel’s actions left Kucharski more than $100,000
in debt, and he was forced to file for bankruptcy a few years after the
couple divorced.

Siegel married Ted Giesendaffer in 1985. She apparently continued
to gamble and continued to support her gambling habit by engaging
in the same kind of fraudulent conduct she began in her first marriage.
Siegel used Giesendaffer’s personal information to obtain credit, and
she stole money from him by altering mortgage-payment checks to
make them payable to her instead of the mortgage company. When
Giesendaffer discovered Siegel’s misconduct, he confronted her about
it and threatened to go to the police. Siegel responded to that threat
with such violence that Giesendaffer hid from her in a closet. Siegel
and Giesendaffer separated in February 1992 and divorced in 1993.

In 1992, Siegel convinced her friends John and Linda Mayberry to
co-sign a car loan and pay the required down-payment. Not surpris-
ingly, Siegel defaulted on the car loan, and the Mayberrys ended up
repaying the loan. Siegel subsequently used John Mayberry’s per-
sonal information to obtain a $3,000 loan in his name.

In December 1992, Siegel stole the wallet of Merle Beckman. She
used Beckman’s credit cards until they were cancelled, and she man-
aged to convince bank employees to give her the number of the
account connected to Beckman’s ATM card. Siegel ultimately stole
thousands of dollars from Beckman. In January 1993, Siegel stole the
wallet of Burdell Dowdell. She wrote checks payable to "Charlene
Townsend" on Dowdell’s account and then posed as Townsend to
cash the checks. In February 1993, Siegel stole the wallet of Leslie
Wallace, whose daughter was in dance class with Siegel’s daughter.
Siegel immediately began draining the funds from Wallace’s bank
accounts. Wallace changed her account number twice, but Siegel
managed to convince bank employees to give her the new account
numbers over the telephone. Siegel also convinced bank employees
to make a large amount of cash available to her at the drive-through
window.2 Bank employees eventually caught on, and Siegel was
2
Claiming to be Wallace, Siegel told the employees that she was being
treated for cancer and had forgotten her account number because the che-
motherapy affected her memory. She also claimed that the chemotherapy
prevented her from entering the bank, so bank employees let her pick up
a large amount of money through the drive-through window.
4 UNITED STATES v. SIEGEL
finally arrested after making another pick-up at the drive-through
window.

Siegel pleaded guilty in Maryland state court to charges stemming
from the Dowdell, Wallace, and Beckman wallet thefts. In December
1994, after pleading guilty but before being sentenced, Siegel stole
the wallet of co-worker Cynthia Kidwell. Although Kidwell did not
keep credit cards or checks in her wallet, the wallet did contain
Kidwell’s driver’s license. Siegel put her own picture on the license
and then used the license to take out loans in Kidwell’s name. After
the fraud was uncovered and Kidwell identified Siegel as a co-
worker, Kidwell recalled seeing Siegel on several occasions parked
near Kidwell’s home, presumably waiting to intercept mail connected
to the fraudulent loans. Siegel pleaded guilty to state charges stem-
ming from the Kidwell theft, and she ultimately received suspended
sentences and probation for each of the wallet thefts.

In 1994, while she was on probation for the wallet-theft crimes,
Siegel met Jack Watkins, a widower almost thirty years her senior.
Watkins lived on Sungold Road in Reisterstown, Maryland. He sup-
ported himself comfortably in his retirement through Social Security
benefits and annuity payments from New York Life. Before he met
Siegel, Watkins had a few credit cards that he used sparingly, and he
always paid the full balance when he did make a credit card purchase.
He owned his home outright, with no mortgage or other encumbrance.

Watkins and Siegel met in the fall of 1994, when she sold him a
burial vault, and the relationship quickly became close. From all
appearances, the relationship was a romantic one. Within months after
meeting Watkins, Siegel began using his personal information to open
new accounts, generally using her own address in Ellicott City, Mary-
land, as the address on the accounts. By December 1994, Siegel had
changed the address on many of Watkins’s pre-existing accounts to
her Ellicott City address. She made extensive charges on those
accounts and allowed the accounts to become delinquent. In May
1995, Siegel persuaded Watkins to buy her a new, $44,000 BMW.
The financing for the car was in Watkins’s name, and the car was
titled and insured under Watkins’s name, but Siegel was the car’s
only driver.
 UNITED STATES v. SIEGEL 5
Sometime in 1995, while Siegel was still on probation, the Mayber-
rys (who Siegel had previously left holding the bag on a car loan)
learned about the $3,000 loan Siegel had taken out in John Mayber-
ry’s name. Mayberry repeatedly confronted Siegel about the loan,
until she finally repaid him. Around this same time, Siegel
approached Jack Butcher, an acquaintance. Siegel cried as she told
him that she would go to jail unless she could come up with $3,000.
Butcher borrowed the money and gave it to Siegel, on the condition
that she repay the loan herself. Siegel of course defaulted on the loan,
and she later tried to use Butcher’s personal information to obtain
another loan. Butcher found out about her efforts and cancelled the
loan. When he confronted her and threatened to go to the police, Sie-
gel became hysterical. She eventually managed to repay the $3,000
loan.

By August 1995, Siegel had accumulated tens of thousands of dol-
lars of debt on credit cards in Watkins’s name, and the balance on the
car loan exceeded $40,000. At Siegel’s urging, Watkins obtained a
$44,000 mortgage on his home on August 22, 1995. Siegel used the
mortgage proceeds to pay off credit card debt, but then promptly
began making new charges. By November 1995, Siegel convinced
Watkins to re-finance the mortgage on his home. She persuaded him
to give her the balance of the mortgage proceeds (approximately
$20,000 after the August mortgage was satisfied) so she could buy the
condominium she lived in. Siegel’s condominium unit, however, was
not for sale, and Siegel used the mortgage proceeds for other pur-
poses.

Siegel apparently exerted as much control over Watkins’s personal
life as she did over his financial life. Before meeting Siegel, Watkins
had breakfast several times a week with a group of friends, and he had
regular contact with stepchildren from a prior marriage. After he met
Siegel, however, he began meeting his breakfast group less and less
frequently. Siegel eventually drove him to one final breakfast where
he said goodbye to his friends. Telephone calls to Watkins from his
stepchildren were forwarded to Siegel’s telephone, but Watkins never
knew about the calls. Before losing contact, Watkins had told his
stepchildren, breakfast friends, and a neighbor about his relationship
with Siegel. He told them that he and Siegel would be getting married
and that he would move into her condominium.
6 UNITED STATES v. SIEGEL
In February 1996, Siegel contacted a real estate company to inquire
about the company buying Watkins’s home. In the first week of April
1996, Siegel pawned most of Watkins’s personal possessions. The
company Siegel had contacted bought Watkins’s home on April 9,
1996. By the time of the sale, the November mortgage was already
several months in arrears. Watkins netted just over $3,800 from the
sale of his home, "a home he had owned free and clear before meeting
Siegel." Brief of Appellant at 14.

After selling the house, Watkins and Siegel went to Atlantic City
to celebrate their upcoming marriage. Watkins apparently drank heav-
ily in Atlantic City, and Siegel took him to an emergency room when
they returned to Maryland. Watkins was admitted to the hospital.
Watkins told hospital staff that Siegel was his fiancée, but Siegel told
the staff that she was simply his caregiver or housekeeper, not his
fiancée. Although Watkins was oriented in time, place, and person,
and appeared to hospital staff to be sensitive and responsive, he was
diagnosed as suffering from dementia, given his insistence in the face
of her denial that he was engaged to Siegel. Watkins was then trans-
ferred to the psychiatric ward. Hospital records indicate that Siegel
did not want Watkins to be discharged into her care and that she tried
to have him placed in a long-term care facility. She was unable to find
a facility with an immediate opening, and she took Watkins to her
condominium when he was discharged on April 16, 1996.

On May 14, 1996, Watkins’s emaciated body was found near an
access point to the Appalachian Trail in Loudoun, Virginia. The body
was stuffed inside two duffle bags and then stuffed into a footlocker.
The cause of death was cervical compression, and there were bruises
and other marks on the body that were consistent with manual stran-
gulation. A toxicology analysis revealed that Watkins’s blood and
liver contained toxic levels of an over-the-counter medication with
sedative effects, which suggested that Watkins had been ingesting
extremely high levels of the medication for a period of weeks or
months. Although Watkins’s body was found within days after his
death, the police were unable to identify the body. Siegel never
reported him missing, and because Watkins had lost contact with his
friends and family, no one else even knew that he had disappeared.

Siegel continued to use Watkins’s identity well after his death. She
stopped the direct deposit of his Social Security checks, had the
 UNITED STATES v. SIEGEL 7
checks mailed to her address (and later a post office box) in Ellicott
City, and deposited the checks in various bank accounts to which she
had access. Siegel continued to receive Watkins’s annuity payments,
and she opened new credit card accounts in Watkins’s name several
years after his death.

Siegel had dated Eric Siegel, a wealthy commercial loan broker, for
a time in 1992. The relationship resumed in fits and starts in May or
June 1995, while Siegel was still involved with Watkins. By June
1996, shortly after Watkins’s death, the relationship was again in full
flower, and Siegel and Eric married in December 1998. Not surpris-
ingly, Siegel did not spare Eric from her fraudulent schemes. She
stole money directly from his financial accounts and incurred substan-
tial debt in his name through credit accounts and loans about which
Eric had no knowledge. When Siegel’s actions came to light, Eric
chose to make good on her debts (which amounted to about $300,000)
rather than report Siegel to the police.

Siegel’s own daughters also became victims of her crimes. Siegel
took money that her daughter Jennifer had given her to make car pay-
ments, and Jennifer’s car eventually was repossessed. Siegel used
Jennifer’s identity and that of her daughter Amanda to open credit
accounts and then defaulted on those accounts, thus destroying her
daughters’ credit ratings. Siegel sometimes used her daughters’ iden-
tities and bank accounts when cashing Watkins’s Social Security
checks and annuity payments in the years after his death.

In January 2003, nearly seven years after Watkins was murdered,
Virginia law enforcement officials identified his body through mili-
tary fingerprint records. The Virginia officials sought help from
investigators with the Social Security Administration, who quickly
determined that Siegel had been receiving Watkins’s Social Security
checks since his death.

After a few months of investigating and watching Siegel, postal
inspectors and an FBI agent approached Siegel after she had retrieved
Watkins’s Social Security check from her post office box. She agreed
to be interviewed. Siegel initially claimed that Watkins was alive and
well, living in Pennsylvania with a woman named Ruth. She said that
before moving to Pennsylvania some six years earlier, Watkins had
8 UNITED STATES v. SIEGEL
lived with her for about eight months after selling his house. Siegel
said that she cashed Watkins’s checks for him because he was a gam-
bler and had financial problems that made it impossible for him to
have a checking account. The investigators finally told Siegel that
they knew what had happened to Watkins. While Siegel repeatedly
told the investigators that she wanted to tell them everything, she
never provided them with any details about Watkins’s death, except
to say that "[i]t didn’t happen the way you think." J.A. 103. Siegel
later told family members that she came home one afternoon and
found Watkins sprawled across the bed with a cord around his neck.

B.

The government indicted Siegel in 2004, charging her with seven
counts of converting Jack Watkins’s Social Security checks, see 18
U.S.C.A. § 641 (West Supp. 2008); six counts of bank fraud, see 18
U.S.C.A. § 1344 (West 2000); one count of identity theft, see 18
U.S.C.A. § 1028 (West 2000 & Supp. 2008); two counts of mail
fraud, see 18 U.S.C.A. § 1341; and two counts of wire fraud, see 18
U.S.C.A. § 1343. The government also charged Siegel with murder-
ing Watkins to prevent him from reporting her fraud, see 18 U.S.C.A.
§ 1512(a)(1)(C); and with impeding an official investigation by trans-
porting Watkins’s body across state lines, see 18 U.S.C.A.
§ 1512(c)(2) (West Supp. 2008).

Although the substantive criminal charges were all premised on
conduct involving Jack Watkins, the indictment alleged as part of Sie-
gel’s "scheme and artifice to defraud" Siegel’s misconduct involving
her three husbands, her daughters, the Mayberrys, and Jack Butcher.
And while the indictment did not include allegations about the wallet
thefts that led to Siegel’s state-court convictions and probationary
sentences, the government before trial filed a motion notifying Siegel
of the wallet-theft evidence and seeking permission to present that
evidence at trial.3 Siegel filed a motion in limine seeking to preclude
3
We will refer to the evidence of fraud involving victims other than
Jack Watkins as the "Other Crime Evidence." When necessary for clar-
ity, we will refer to the Other Crime Evidence that was alleged in the
indictment as the "Charged Other Crime Evidence," and the Other Crime
Evidence that was not mentioned in the indictment as the "Uncharged
Other Crime Evidence."
 UNITED STATES v. SIEGEL 9
the government from presenting at trial any of the Other Crime Evi-
dence, and Siegel also sought to strike as surplusage the allegations
in the indictment about the Charged Other Crime Evidence.

A week before Siegel’s trial was scheduled to begin, the district
court held a hearing to consider the pending motions. Counsel for Sie-
gel argued that the Other Crime Evidence was inadmissible character
evidence, see Fed. R. Evid. 404(a), and counsel argued that the gov-
ernment could not avoid Rule 404 by including allegations of the
Charged Other Crime Evidence in the indictment. Counsel for Siegel
therefore argued that the allegations of the Charged Other Crime Evi-
dence should be stricken from the indictment and that the government
should be precluded from presenting at trial any of the Other Crime
Evidence.

The government argued that the mail and wire fraud statutes under
which Siegel was charged required proof of a "scheme or artifice to
defraud." The government contended that Siegel had a single, twenty-
year long scheme to defraud various victims. The government argued
that it was entitled to include in the indictment allegations setting
forth the full scope of that scheme, including the allegations of the
Charged Other Crime Evidence, regardless of whether the conduct set
forth in those allegations was the subject of substantive criminal
counts. As for the Uncharged Other Crime Evidence, the government
contended that those crimes were an intrinsic part of the indicted
scheme to defraud and that the Uncharged Other Crime Evidence was
therefore admissible. Alternatively, the government contended that
the Other Crime Evidence was relevant to establish, among other
things, Siegel’s motive for killing Watkins and that the Other Crime
Evidence was therefore admissible under Rule 404(b).

The district court granted Siegel’s motions, at least for purposes of
opening statements and the government’s case-in-chief. The court
concluded that the Other Crime Evidence would be offered to prove
Siegel’s propensity to commit fraud and that introduction of the evi-
dence was therefore prohibited by Rule 404(b). As for the Charged
Other Crime Evidence, the court concluded that because the evidence
was not admissible, the allegations in the indictment about that mis-
conduct should be stricken as surplusage.
10 UNITED STATES v. SIEGEL
The district court explained that while the Other Crime Evidence
might be "relevant in a very expansive way," J.A. 424, the evidence
of Siegel’s defrauding of her husbands and daughters "and all the
things that occurred prior to the 1993-94 period . . . . is inflammatory,
unduly prejudicial, is certain to give rise to a waste of time, [and] it
is cumulative and its probative value is significantly outweighed by
its . . . unfair prejudicial effect." J.A. 424-25. The court expressed its
view that "the case that should have been indicted is the murder case
involving Mr. Watkins and the related defrauding of Mr. Watkins and
the banks, insurance company and the Social Security Administration
thefts, [and] that’s the case we’re going to try." J.A. 426.

It appears that the court’s ruling was at least partially driven by the
court’s concern about the length of trial. The court suggested that Sie-
gel’s husbands and children might feel some amount of guilt, because
they effectively enabled Siegel’s crimes by not going to the police
before Watkins was murdered. The court stated that if Siegel’s family

had been less loving, less forgiving, less understanding . . . ,
maybe we wouldn’t be here today in federal court in a mur-
der case. This case is not the place with all respect for those
persons to expiate their differences. This is not the forum for
that. . . . I go down this path just to point out why it clearly
would be very likely an enormous waste of time to permit
ex-husbands to come in here over the course of days and
days and days of what I understand is likely to be hours and
hours of testimony . . . . Clearly, we open up the whole pan-
oply of issues relating to the defendant’s state of mind, her
mental health, his knowledge of it. Was he protecting her for
this reason or that reason or some other reason? And the
same thing can be said about the other husbands, ex-
husbands. Same thing can be said about the daughters. It’s
not a family law case. It’s a murder case.

J.A. 427-28.

Believing that the district court’s rulings severely hampered its
ability to prove the charges against Siegel, the government filed this
interlocutory appeal.
 UNITED STATES v. SIEGEL 11
II.

We first consider Siegel’s claim that we lack jurisdiction over the
government’s appeal. The government’s right to appeal an adverse
ruling in a criminal case is controlled by 18 U.S.C.A. § 3731 (West
Supp. 2008). Section 3731 authorizes the government to appeal an
order

suppressing or excluding evidence or requiring the return of
seized property in a criminal proceeding, not made after the
defendant has been put in jeopardy and before the verdict or
finding on an indictment or information.

Id.4 Siegel argues that the district court’s decision was a preliminary
ruling only and thus did not actually have the effect of suppressing
or excluding evidence. Siegel therefore contends that the district
court’s order is not appealable under § 3731. We disagree.

As Siegel points out, the district court repeatedly indicated that its
rulings were preliminary and could change as the trial progressed.
See, e.g., J.A. 423 (indicating that the district court would "wait until
[it] hears the evidence so as to make a better informed, more reason-
able decision about what really is surplusage and what is not"); J.A.
426-27 ("Now with respect to what the Government describes as the
uncharged conduct, the Court does not intend at this time to admit any
of such evidence. . . . [D]epending on how things go, I’m not fore-
closing the Government from persuading me. I seriously doubt the
Government will persuade me. But I’m not totally foreclosing the
possibility that the Government will persuade me to admit evidence
of . . . no more than one . . . of the wallet theft incidents."). The dis-
trict court’s order, however, while described as preliminary, pre-
cluded the government from referring to any of the Other Crime
Evidence in opening statements and from presenting any of that evi-
dence during its case-in-chief. Moreover, the district court made it
4
Section 3731 also requires the United States attorney to certify to the
district court "that the appeal is not taken for purpose of delay and that
the evidence is a substantial proof of a fact material in the proceeding."
The government has complied with the certification requirement in this
case.
12 UNITED STATES v. SIEGEL
clear that it would reconsider the issue only after the close of the gov-
ernment’s case-in-chief. By that point in the trial, however, jeopardy
would have long since attached, see, e.g., United States v. Osteen, 254
F.3d 521, 526 (4th Cir. 2001), and the government would be statu-
torily prohibited from pursuing an appeal. See 18 U.S.C.A. § 3731
(permitting appeal of orders excluding evidence only if the order was
"not made after the defendant has been put in jeopardy").

Section 3731 was enacted "to remove all statutory barriers to Gov-
ernment appeals and to allow appeals whenever the Constitution
would permit," United States v. Wilson, 420 U.S. 332, 337 (1975),
and the statute by its own terms must be "liberally construed to effec-
tuate its purposes." 18 U.S.C.A. § 3731. Because no jury has been
sworn in this case, the Double Jeopardy clause clearly does not pre-
clude the government’s appeal. And the district court’s ruling without
question prevents the government from presenting in its case-in-chief
substantial evidence establishing a significant portion of the fraudu-
lent scheme alleged by the government in the indictment. Even if the
district court reconsidered the issue, the court stated that it would at
most permit the government to present evidence of one of the wallet
thefts. The district court’s decision, though couched in preliminary
terms, therefore effectively and finally suppressed a large portion of
the evidence the government intended to present at trial. Under these
circumstances, we have no difficulty concluding that the govern-
ment’s appeal of the district court’s rulings is authorized by § 3731.
To conclude otherwise would insulate the district court’s ruling from
appellate review, thus frustrating rather than furthering the purposes
of § 3731. See United States v. Horwitz, 622 F.2d 1101, 1104-05 (2d
Cir. 1980) (permitting government to appeal district court’s condi-
tional ruling that testimony of government witnesses would be sup-
pressed unless the government also granted immunity to certain
defense witnesses, which the government insisted it would not do:
"[I]f the judge’s decision to suppress evidence is incorrect and a judg-
ment of acquittal results, principles of double jeopardy will prevent
a government appeal, a situation which section 3731 was designed to
prevent. Under the circumstances, it would be an exercise in pure for-
malism to hold that the district court’s order is not appealable at this
juncture."); United States v. Helstoski, 576 F.2d 511, 521 (3d Cir.
1978) ("Section 3731 was designed to allow appeals . . . to insure that
 UNITED STATES v. SIEGEL 13
prosecutions are not unduly restricted by erroneous pre-trial decisions
to exclude evidence."), aff’d, 442 U.S. 477 (1979).

III.

We turn now to the government’s contention that the district court
erred by excluding the Other Crime Evidence. Under the Federal
Rules of Evidence, "[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action
in conformity therewith." Fed. R. Evid. 404(b). Such evidence, how-
ever, may "be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident." Id. The Rule 404(b) inquiry applies only to
evidence of other acts that are "extrinsic to the one charged." United
States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996). "[A]cts intrinsic to the
alleged crime do not fall under Rule 404(b)’s limitations on admissi-
ble evidence." Id. at 87-88.

The government argues that the Other Crime Evidence involves
crimes that were part of Siegel’s twenty-year scheme to support her
gambling habit by defrauding anyone available, be it family or
friends. The government contends that the conduct described by the
Other Crime Evidence was intrinsic to the charged crimes and that the
Other Crime Evidence therefore is not subject to the limitations of
Rule 404(b). And even if the Other Crime Evidence involved crimes
that should be viewed as extrinsic to the charged crimes, the govern-
ment argues that the evidence was nonetheless admissible under Rule
404(b).

Siegel, however, contends that fraudulent acts committed (in some
instances years) before she even met Jack Watkins and involving vic-
tims with no connection to Watkins cannot be considered intrinsic to
the Watkins-related crimes charged in the indictment. Siegel insists
that the Other Crime Evidence was offered solely to show her bad
character and her propensity to commit fraud and that the district
court therefore properly excluded the evidence under Rule 404(b).

A.

Evidence of uncharged conduct is not "other crimes" evidence sub-
ject to Rule 404 if the uncharged conduct "arose out of the same
14 UNITED STATES v. SIEGEL
series of transactions as the charged offense, or if [evidence of the
uncharged conduct] is necessary to complete the story of the crime on
trial." United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994)
(internal quotation marks and alterations omitted); see also Chin, 83
F.3d at 88 ("Other criminal acts are intrinsic when they are inextrica-
bly intertwined or both acts are part of a single criminal episode or
the other acts were necessary preliminaries to the crime charged."
(internal quotation marks omitted)).

In our view, at least some of the conduct underlying the Other
Crime Evidence is properly viewed as intrinsic to the Watkins-related
counts with which Siegel was charged. For example, evidence of Sie-
gel’s crimes against Eric Siegel, and the scope of those crimes, would
provide important context for the government’s charge that Siegel
murdered Watkins to prevent him from discovering and reporting her
crimes. By the time Siegel had exhausted Watkins’s financial
resources, she had already re-established her relationship with Eric,
her future husband. Eric’s wealth made him a much more attractive
target for Siegel’s attentions, so she needed to find a way to end her
relationship with Watkins that would not jeopardize her freedom or
her access to Eric’s financial resources. If Siegel had simply walked
away from Watkins in order to pursue her relationship with Eric,
Watkins—who no longer had his own place to live (or any personal
possessions, for that matter)—would have had little choice but to turn
to his long-neglected friends or family for help. His family and
friends would almost certainly have discovered and explained to Wat-
kins what Siegel had done to him, which would have placed Siegel
at great risk. Siegel had already failed in her efforts to have Watkins
institutionalized, and it surely would have been difficult for Siegel to
pull off a marriage to Eric if she were living with another man. Evi-
dence of her crimes against Eric would thus provide the jury with the
necessary context for the government’s claim that Siegel murdered
Watkins so that she could safely move forward in her relationship
with Eric. See United States v. Cooper, 482 F.3d 658, 663 (4th Cir.
2007) (explaining that evidence of bad acts that "provide[s] context
relevant to the criminal charges" is admissible without consideration
of the requirements of Rule 404); United States v. Lipford, 203 F.3d
259, 268 (4th Cir. 2000) (evidence of other criminal acts admissible
without regard to Rule 404(b) where the evidence "served to complete
the story" of the charged crimes).
 UNITED STATES v. SIEGEL 15
For similar reasons, the wallet thefts to which Siegel pleaded guilty
in state court are also properly viewed as intrinsic to the Watkins-
related crimes. Siegel was still on probation for these crimes when
Watkins was killed. Thus, Siegel’s relationship with Eric and her per-
sonal freedom depended on her ability to extricate herself from the
relationship with Watkins without him discovering and reporting her
crimes.

We are not certain, however, that all of the Other Crime Evidence
involves conduct that can be viewed as intrinsic to the crimes with
which Siegel was charged. For example, it is not apparent that Sie-
gel’s defrauding of the Mayberrys and Jack Butcher were inextricably
intertwined with her defrauding of Watkins, and her conduct with
regard to Butcher and the Mayberrys does not at first blush seem to
provide relevant context for any of the Watkins-related crimes with
which Siegel was charged. We need not, however, definitively deter-
mine whether each piece of the Other Crime Evidence may be viewed
as intrinsic to the crimes for which Siegel has been indicted. As we
explain below, we conclude that the Other Crime Evidence is admis-
sible under Rule 404(b), which makes further inquiry into the
intrinsic-extrinsic divide unnecessary.

B.

"Rule 404(b) prohibits evidence of other crimes or bad acts to show
bad character or propensity to break the law." United States v. Young,
248 F.3d 260, 271 (4th Cir. 2001). Evidence of other crimes nonethe-
less is

admissible for other purposes, which include, but are not
limited to, proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.
Rule 404(b) is viewed as an inclusive rule, admitting all evi-
dence of other crimes or acts except that which tends to
prove only criminal disposition.

Id. (emphasis added; citations and internal quotation marks omitted).
To be admissible under Rule 404(b), evidence must be "(1) relevant
to an issue other than character; (2) necessary; and (3) reliable."
United States v. Wells, 163 F.3d 889, 895 (4th Cir. 1998) (internal
16 UNITED STATES v. SIEGEL
quotation marks omitted); see also United States v. Queen, 132 F.3d
991, 997 (4th Cir. 1997).

We agree with the government that the Other Crime Evidence was
relevant to issues other than Siegel’s bad character. The Other Crime
Evidence is most directly relevant to establishing Siegel’s motive for
killing Jack Watkins. The government charged Siegel under 18
U.S.C.A. § 1512(a)(1)(C), which required the government to prove
not only that she killed Watkins, but that she killed him for the pur-
pose of preventing him or anyone else from providing law enforce-
ment with information about the federal crimes she had committed.
The Other Crime Evidence showed that Siegel had an extensive his-
tory of fraud that inflicted significant financial losses on numerous
victims. Given the scope of her fraudulent conduct, Siegel would
likely face a lengthy prison term and substantial restitution obliga-
tions if she were caught. The Other Crime Evidence would thus give
a jury a basis for concluding that Siegel had a very strong interest in
keeping Watkins quiet. See United States v. Willoughby, 860 F.2d 15,
24 (2d Cir. 1988) (in case where the defendants were charged with
obstruction of justice, evidence of defendants’ participation in a rob-
bery was admissible under Rule 404(b) because it was "highly proba-
tive of their motive, and the intensity of that motive, to seek to
prevent certain witnesses from testifying at their trial for robbery").
Accordingly, because the Other Crime Evidence established the
extent of Siegel’s fraudulent scheme and explained her motive for
killing Watkins, the Other Crime Evidence was relevant to an issue
other than Siegel’s character.

The Other Crime Evidence likewise tended to show Siegel’s modus
operandi: Her typical pattern was to obtain the personal information
of another person, use that information to obtain credit in that per-
son’s name, and take whatever steps were necessary to prevent that
person from learning about the new accounts until it was too late. She
engaged in that pattern when defrauding each of her husbands, her
daughters, the Mayberrys, Jack Butcher, and, of course, Jack Watkins.
Because the Other Crime Evidence established a modus operandi, it
is admissible under Rule 404(b). See United States v. Tanner, 61 F.3d
231, 237 (4th Cir. 1995); see also Queen, 132 F.3d at 997 (explaining
that "the more similar the prior act is (in terms of physical similarity
 UNITED STATES v. SIEGEL 17
or mental state) to the act being proved, the more relevant it becomes"
for purposes of Rule 404(b)).

We likewise conclude that the components of the Other Crime Evi-
dence are individually relevant to issues other than character. Siegel
told federal investigators that Watkins had a gambling problem that
led to his financial difficulties, which suggests that Siegel may claim
at trial that Watkins lost his house and other assets not because she
stole them, but because of his gambling problem. Such a defense
would undercut the government’s theory of the case and its explana-
tion of her motive for killing Watkins. The evidence that Siegel
started gambling while married to her first husband and began to steal
money from him to cover her losses would therefore be admissible as
evidence of Siegel’s motive.

The evidence of the wallet thefts showed that Siegel was in real
danger of going to jail if arrested again, given that she was still on
probation for those crimes when Watkins was killed. The evidence
that John Mayberry repeatedly confronted Siegel about repayment of
a $3,000 loan and that Siegel repaid Mayberry around the same time
that she induced Butcher to provide her with that precise amount of
money indicates that Siegel’s house of cards was on the verge of col-
lapsing, thus magnifying the possibility that her probation would be
revoked. The evidence that Siegel became violent when her second
husband threatened to go to the police again shows the depth of Sie-
gel’s fear of going to jail. The evidence showing that Siegel defrauded
her own daughters and her husbands tends to show the hold that gam-
bling had on Siegel and tends to refute any suggestion that Watkins
knew about the accounts she opened in his name. Cf. Queen, 132 F.3d
at 997 ("the more similar the prior act is . . . to the act being proved,
the more relevant it becomes" for purposes of Rule 404(b)). Finally,
for the reasons discussed previously, the evidence of Siegel’s defraud-
ing of Eric helps establish Siegel’s motive for killing Watkins.

Because Siegel had been defrauding multiple victims for at least
twenty years and had never previously taken such extreme action, it
is particularly important for the government to be able to explain to
the jury why it was suddenly necessary for Siegel to resort to murder.
Accordingly, we conclude that the Other Crime Evidence, individu-
ally and as a whole, was relevant to issues other than Siegel’s charac-
18 UNITED STATES v. SIEGEL
ter or propensity to commit fraud. See United States v. Aramony, 88
F.3d 1369, 1377 (4th Cir. 1996) ("To be relevant, evidence need only
to have any tendency to make the existence of any fact that is of con-
sequence to the determination of the action more probable or less
probable than it would be without the evidence." (internal quotation
marks omitted)).

The Other Crime Evidence was also necessary within the meaning
of our Rule 404(b) jurisprudence. See Wells, 163 F.3d at 895. For pur-
poses of Rule 404(b), evidence of other crimes or bad acts is neces-
sary if it is "an essential part of the crimes on trial, or where it
furnishes part of the context of the crime." Queen, 132 F.3d at 998
(internal quotation marks omitted)). As explained above, the § 1512
charge requires the government to prove that Siegel killed Watkins
for the purpose of preventing her crimes from being reported to the
police. As we have explained, the Other Crime Evidence is important
to establishing Siegel’s motive, an essential element of the § 1512
charge. The Other Crime Evidence was therefore necessary for pur-
poses of Rule 404(b).

The final requirement for admissibility under Rule 404(b)—that the
evidence of other crimes be reliable, see Wells, 163 F.3d at 895—is
likewise satisfied in this case. Evidence is reliable for purposes of
Rule 404(b) "unless it is so preposterous that it could not be believed
by a rational and properly instructed juror." Aramony, 88 F.3d at 1378
(internal quotation marks omitted). Although the Other Crime Evi-
dence shows that Siegel was willing to go to shocking lengths to get
the money she needed to fuel her gambling addiction, it is in no sense
preposterous or unbelievable.

Accordingly, we conclude that the Other Crime Evidence satisfies
the requirements for admissibility established by Rule 404(b).

C.

Evidence sought to be admitted under Rule 404(b) must also satisfy
Rule 403’s requirement that the probative value of the evidence must
not be "substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations
 UNITED STATES v. SIEGEL 19
of undue delay, waste of time, or needless presentation of cumulative
evidence." Fed. R. Evid. 403; see Queen, 132 F.3d at 997.

Although the district court indicated that the Other Crime Evidence
should be excluded under Rule 403 as unfairly prejudicial, the court
did not explain why it found the evidence to be unfairly prejudicial.
After considering the record before us, we find nothing to support the
district court’s determination on this issue.

The Other Crime Evidence is certainly prejudicial to Siegel’s case,
"just as all evidence suggesting guilt is prejudicial to a defendant."
United States v. Williams, 445 F.3d 724, 730 (4th Cir. 2006). That
kind of general prejudice, however, is not enough to warrant exclu-
sion of otherwise relevant, admissible evidence. Evidence may be
excluded under Rule 403 only if the evidence is unfairly prejudicial
and, even then, only if the unfair prejudice substantially outweighs
the probative value of the evidence. See id. "Evidence is unfairly prej-
udicial and thus should be excluded under Rule 403 when there is a
genuine risk that the emotions of a jury will be excited to irrational
behavior, and this risk is disproportionate to the probative value of the
offered evidence." Id. at 730 (internal quotation marks and alteration
omitted). Because the Other Crime Evidence describes fraudulent
conduct that is substantially similar to the conduct that Siegel engaged
in while defrauding Jack Watkins, we cannot conclude that introduc-
tion of the Other Crime Evidence would create a substantial risk that
jurors would be excited to irrational behavior. Under these circum-
stances, we conclude that the district court abused its discretion by
determining that Rule 403 required exclusion of the Other Crime Evi-
dence. See United States v. Kelly, 510 F.3d 433, 437 (4th Cir. 2007)
("[W]e defer to the district court’s Rule 403 balancing . . . unless it
is an arbitrary or irrational exercise of discretion" (internal quotation
marks omitted)), cert. denied, 128 S. Ct. 1917 (2008); Aramony, 88
F.3d at 1378 ("Because the evidence sought to be excluded under
Rule 403 is concededly probative, the balance under Rule 403 should
be struck in favor of admissibility, and evidence should be excluded
only sparingly.").

The district court’s decision to exclude the Other Crime Evidence
was also grounded in the court’s concern about the length of time it
would take to present the evidence. See J.A. 428 ("I go down this path
20 UNITED STATES v. SIEGEL
just to point out why it clearly would be very likely an enormous
waste of time to permit ex-husbands to come in here over the course
of days and days and days of what I understand is likely to be hours
and hours of testimony. . . ."). A district court is, of course, vested
with broad authority to control the manner of trial and the presenta-
tion of evidence. See United States v. Janati, 374 F.3d 263, 273 (4th
Cir. 2004) ("The scope of the district court’s discretion to manage tri-
als before it is and must be particularly broad."); see also Fed. R.
Evid. 611. Nevertheless, "[s]ubject to the district court’s reasonable
management of cases brought to the court for trial, the government
too has broad discretion to prosecute crimes." Janati, 374 F.3d at 274.

Although we sympathize with the district court’s concern about the
length and complexity of the trial, we agree with the government that
the district court excluded the Other Crime Evidence without suffi-
ciently considering the importance of the evidence to the govern-
ment’s case. While the government could easily prove the fraud and
identity theft charges against Siegel without the Other Crime Evi-
dence, the § 1512(a)(1)(C) charge, as we have previously discussed,
requires the government to prove that Siegel killed Watkins for the
purpose of preventing Watkins or others from giving law enforcement
officials information about federal crimes she had committed. Intent
is often a difficult element to prove, but the Other Crime Evidence,
as we have explained, is highly probative of Siegel’s intent. The dis-
trict court, however, excluded the Other Crime Evidence in its
entirety, without considering whether there was other evidence that
could establish the elements necessary to prove the § 1512(a)(1)(C)
charge.

A trial where none of the Other Crime Evidence was admitted
would certainly be shorter than a trial where all of the Other Crime
Evidence was admitted and subjected to thorough cross-examination,
and the district court’s preference for a shorter trial focusing only on
the conduct related to Jack Watkins is understandable. The district
court, however, has other tools available to it to ensure that the trial
proceeds as expeditiously as possible — for example, by requiring to
the extent possible that the direct and cross-examination of Siegel’s
ex-husbands and daughters focus on the specifics of Siegel’s actions
— while still giving the government sufficient "latitude during trial
to carry its burden of proof." Janati, 374 F.3d at 274. Under these cir-
 UNITED STATES v. SIEGEL 21
cumstances, we simply cannot conclude that the district court’s pref-
erence for a shorter, more focused trial provides a sufficient basis for
the wholesale exclusion of the Other Crime Evidence, evidence that,
as we have explained, is relevant, admissible, and highly probative.
Cf. United States v. Colomb, 419 F.3d 292, 297 (5th Cir. 2005)
("Although decisions that a court makes under Rule 611 may indi-
rectly affect whether proof is admitted, the Rule does not provide an
independent ground for excluding otherwise-admissible evidence.").
Accordingly, after carefully considering the nature of the Other Crime
Evidence, we are constrained to conclude that the district court erred
by granting Siegel’s motion in limine to preclude the government
from introducing the Other Crime Evidence at trial.

IV.

We pause briefly to address the district court’s decision to strike as
surplusage the portions of the indictment setting forth the Charged
Other Crime Evidence. The district court’s decision to strike the alle-
gations flowed directly from its conclusion that the Other Crime Evi-
dence should be excluded; the district court concluded that the Other
Crime Evidence was inadmissible, and the court then struck from the
indictment any allegations touching on the evidence deemed inadmis-
sible.

Given our determination that the Other Crime Evidence was admis-
sible under Rule 404(b) and not excludable under Rule 403, there
simply is no basis for striking the allegations of the Charged Other
Crime Evidence from the indictment. See Williams, 445 F.3d at 733
("A motion to strike surplusage from the indictment should be granted
only if it is clear that the allegations are not relevant to the charge and
are inflammatory and prejudicial." (internal quotation marks and
alteration omitted)).

V.

To summarize, we conclude that we have jurisdiction over the gov-
ernment’s appeal from the district court’s pre-trial decisions to
exclude from trial the Other Crime Evidence and to strike from the
indictment allegations of the Charged Other Crime Evidence. We also
conclude that the Other Crime Evidence, individually and as a whole,
22 UNITED STATES v. SIEGEL
is admissible under Rule 404(b) and, at least on the record before us,
cannot be excluded under Rule 403. Finally, given our determination
that the Other Crime Evidence is admissible, we conclude that the dis-
trict court erred by striking allegations of the Charged Other Crime
Evidence from the indictment.

Accordingly, for the foregoing reasons, we hereby reverse the dis-
trict court’s decision excluding the Other Crime Evidence and its
decision striking allegations of the Charged Other Crime Evidence
from the indictment, and we remand the case for trial.

REVERSED AND REMANDED

KISER, Senior District Judge, concurring in part and dissenting in
part:

I concur with part II of the opinion which holds that the court has
jurisdiction over the appeal pursuant to 18 U.S.C. § 3731. I dissent to
part III, however, because the majority does not review the district
judge’s factual and evidentiary rulings under the proper standard —
abuse of discretion.

I.

In ruling on the admissibility of the Other Crime Evidence prof-
fered by the government and set forth in the indictment, the trial court
is required to make factual determinations. Fed. R. Evid. 104(a). "The
applicability of a particular rule of evidence often depends upon the
existence of a condition . . . To the extent that these inquiries are fac-
tual, the judge acts as a trier of fact. Often, however, rulings on evi-
dence call for an evaluation in terms of a legally set standard . . .
These decisions, too, are made by the judge." Fed. R. Evid. 104(a)
advisory committee’s note.

First a judge has to decide whether the "other crimes" are intrinsic
to the charged offense. Second, if the "other crimes" are not intrinsic,
then admissibility must be tested under Federal Rules of Evidence
404(b) and 403. As the majority recognizes, the trial court found that
the Other Crime Evidence was not properly part of the alleged
 UNITED STATES v. SIEGEL 23
scheme as set forth in the charged counts, nor was it admissible under
Rules 404(b) and 403. Viewing these rulings on an abuse of discretion
standard, I would largely uphold the district judge’s determinations.

As the majority points out, all of the charged offenses, including
the murder, involve Jack Watkins. Siegel’s relations with him began
in 1994 and her fraudulent conduct with regard to him continued
through June 2003 (even though Watkins was allegedly murdered on
or about May 13, 1996). The Charged Other Crime Evidence was
sought to be introduced solely as part of the "scheme or artifice to
defraud" elements of the mail and wire fraud charges. This evidence
included:

1. 1968-1985: Siegel opened credit accounts under the identity of
her first husband, Charles Kucharski.

2. 1985-1993: Siegel defrauded Ted Giesendaffer, her second hus-
band. When confronted she became violent.

3. 1992-1994: Siegel had John Mayberry sign an auto loan for her,
then used that information to take out an unrelated loan for $3,000.
She repaid the loan in 1994.

4. 1992-2003: Siegel met Eric Siegel, her third husband in 1992.
The relationship was periodically interrupted before they finally mar-
ried in 1998. Defendant took over Mr. Siegel’s existing accounts and
opened new ones, resulting in approximately $300,000 in losses to
Mr. Siegel. He repaid these debts.

5. 1994: After Jack Butcher gave her a $3,000 loan, she defaulted
on the loan and unsuccessfully attempted to use Mr. Butcher’s per-
sonal information to take out a loan. Siegel became hysterical when
he threatened to go to the police.

6. 1997: Siegel stole mail from the mailbox of James and Janice
Lee and opened various credit accounts using their identities.

7. 1996: Siegel used her daughters’ identities to open credit
accounts. She also used their identities to cash benefit checks made
out to Watkins.
24 UNITED STATES v. SIEGEL
The government also sought to introduce Uncharged Other Crime
Evidence, which consisted of four separate incidents in which Siegel
stole an acquaintance’s wallet and used the information found therein
to defraud the victim. These incidents occurred between January 1993
and December 1994. Siegel pled guilty to these crimes and received
a suspended sentence and probation, which was still effective when
she murdered Watkins.

II.

A.

The trial judge found that these other crimes were not properly part
of a common scheme with the charged crimes, but rather that they
were discrete acts of fraud. Indeed, the only thing in common with the
charged crimes was the element of deception, but that can be said of
all fraudulent conduct. Where the incidents were temporally sepa-
rated, used different means, and were otherwise unrelated to the
charged conduct, a district judge does not abuse his discretion in
refusing to allow the government to present these other incidents as
part of the scheme. See McLendon v. United States, 2 F.2d 660, 660-
61 (6th Cir. 1924) ("it has never yet been thought that the ‘scheme to
defraud’ . . . could be found in the mere succession of diverse swin-
dles, unrelated save as they had a common stage.").

The district judge did abuse his discretion with regard to the evi-
dence that Siegel used her daughters’ identities to cash Watkins’s
checks. This is clearly intrinsic to the charged conduct and must
therefore be admissible.

B.

That the government chose to denominate these other crimes as
part of a scheme does not free them from scrutiny by the trial judge
as to whether they qualify as part of the scheme. Nor does it free the
evidence from the constraints of Rules 404(b) and 403. The majority
finds that the trial court did not adequately explain why he found the
evidence to be unduly prejudicial under Rule 403. I disagree. Rule
403 provides that evidence may be excluded if the court finds it to
 UNITED STATES v. SIEGEL 25
cause "unfair prejudice, confusion of the issues . . . or by consider-
ations of undue delay."

In explaining his ruling the district judge spoke to these concerns:
"[W]hile that’s very interesting evidence and relevant in a very
expansive way . . . the Court is satisfied that it is inflammatory,
unduly prejudicial, is certain to give rise to a waste of time, it is
cumulative and its probative value is significantly outweighed by its
prejudicial and unfair prejudicial effect." J.A. 424-25. Because the
trial judge found that the Other Crime Evidence has little legal rele-
vance, his conclusion differs from that of the government and the
majority. Because this ruling was within the district judge’s discre-
tion, the majority errs in overturning it.

C.

Testing the Other Crimes Evidence against the requirements of
Rule 404(b), the district judge found that if offered by the government
in its case-in-chief it would not qualify under any exception to the
Rule. Instead, the district judge found that it would only be used to
demonstrate that which Rule 404 is meant to prohibit — criminal
character and propensity. It must be remembered that the court’s rul-
ing went only to the opening statement and the government’s case-in-
chief. The court left open the question of whether the evidence would
be admissible after Siegel put on her defense. Of course, if Siegel
should testify the evidence would be available for impeachment pur-
poses.

Under Rule 404(b), the Other Crime Evidence may also be admis-
sible if it is used as "proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident." The
majority opines that the Other Crime Evidence fits under several of
these options. In analyzing each of these, the majority explains why
it would have reached a different conclusion than the district judge.
However, it is never explained why the district judge’s decision was
an abuse of discretion.

Initially, the majority opinion argues that much of the Other Crime
Evidence goes toward Siegel’s motive for killing Watkins. Under this
theory, Siegel killed Watkins not only to prevent him from telling the
26 UNITED STATES v. SIEGEL
government about the crimes she had perpetuated against him, but
also because then the Other Crime Evidence would be discovered.
Because the Other Crime Evidence would have affected her prison
term and restitution obligations, she had an enhanced motive to try to
keep the Other Crime Evidence hidden.

In its analysis, the majority relies on Willoughby, 860 F.2d 15, 24
(2d Cir. 1988). In Willoughby the defendants were charged with
obstruction of justice for seeking to prevent witnesses from testifying
at their trial for robbery. The challenged evidence, which the district
judge admitted, was the defendants’ participation in that robbery. The
court concluded that "when a defendant has been charged with
attempted or actual obstruction of justice with respect to a given
crime, evidence of the underlying crime and the defendant’s part in
it is admissible to show the motive for his efforts." Id.

Willoughby is inapplicable to the present case for two reasons.
First, the district court in that case admitted the challenged evidence
and the circuit court concluded that this was not an abuse of discre-
tion. Second, the challenged evidence here is not part of the underly-
ing crime. This analysis would be appropriate if the challenged
evidence was Siegel’s defrauding of Watkins. As discussed above,
however, the district judge concluded that the Other Crime Evidence
was not part of the scheme, and thus not part of the underlying crime.
It is true that the Other Crime Evidence may have been relevant to
enhance Siegel’s motive to silence Watkins, but the district court
found that the prejudice sufficiently outweighed the probative value
of such evidence. The government already had a solid motive and the
cumulative nature of this evidence was disproportionately prejudicial.
Thus it was not an abuse of discretion to exclude it.

The district judge did abuse his discretion, however, by failing to
admit two pieces of evidence under this theory. First, Siegel’s rela-
tionship and subsequent defrauding of Eric Siegel should be admitted.
The overlap of their relationship with Siegel’s relationship with Wat-
kins and her incentive of having access to Eric Siegel’s substantial
financial resources provide ample proof of motive.

Second, Siegel’s suspended sentence and probation which stemmed
from the wallet thefts enhanced her motive to prevent Watkins from
 UNITED STATES v. SIEGEL 27
going to the police because she would have received a separate and
increased penalty. This motive is considerably more concrete and thus
more probative than the theoretical motives advanced by the govern-
ment for the rest of her earlier crimes. The district judge recognizes
this theory of relevance and says "depending on how things go, I’m
not foreclosing the government from persuading me . . . I’m not
totally foreclosing the possibility that the Government will persuade
me to admit evidence of at least one, of no more than one I should
say of the wallet theft incidents." J.A. 426. The motive is not created
by the wallet thefts themselves, but instead by the suspended sentence
and probation. Due to the heightened probative value of this evidence,
the district judge, having recognized the valid purpose of this evi-
dence, abused his discretion by excluding it.

Next, the majority determines that the Other Crime Evidence is
admissible under the "identity" or "modus operandi" exception to
Rule 404(b). Evidence of this type should be admitted where the
crimes are similarly unique and distinctive. See United States v.
Haney, 914 F.2d 602, 607 (4th Cir. 1990) (noting that the evidence
demonstrated a "signature crime."). The modus operandi that the
majority points to here is that Siegel obtained her victims’ personal
information, used that information to obtain credit, and took steps to
conceal her fraud. These are the routine steps in any identity theft
crime. There is nothing sufficiently unique to admit this evidence
under this exception to Rule 404(b).

The majority also justifies reversing the district court judge’s
exclusion of the Other Crime Evidence because it could be used to
refute Siegel’s potential defense strategies. For example, evidence
that Siegel stole from her first husband to cover her gambling debts
should be admitted to refute her potential defense that Watkins’s
financial difficulties were caused by his own gambling problem.
Every defendant has the right to elect to provide no defense at all, and
the government would still be required to meet its burden. Therefore,
it is improper for the government to present evidence which is used
solely to attack a defense which has not yet been presented. It cer-
tainly is not an abuse of discretion to, as here, exclude such evidence
from being presented during the government’s case-in-chief.
28 UNITED STATES v. SIEGEL
III.

Whether the excluded evidence was intrinsic to the charged scheme
was a fact committed to the judgement of the district court under Rule
104 and must be reviewed under an abuse of discretion standard. Burt
Rigid Box, Inc. v. Travelers Property Casualty Corp., 302 F.3d 83, 92
(2d Cir. 2002). Whether the excluded evidence was admissible under
Rules 404(b) and 403 is also reviewed under an abuse of discretion
standard.

"Judgments of evidentiary relevance and prejudice are fundamen-
tally a matter of trial management, for trial judges are much closer to
the pulse of a trial than we can ever be and broad discretion is neces-
sarily accorded them. The standard of review therefore counsels def-
erence to the discretion of trial courts. In a criminal appeal, we will
not vacate a conviction unless we find that the district judge acted
arbitrarily or irrationally in admitting evidence." United States v.
Benkahla, No. 07-4778, 2008 WL 2486741, at *7 (4th Cir. June 23,
2008). The same would apply for the exclusion of evidence.

Because the majority has failed to apply the abuse of discretion
level of review to the rulings of the district judge, I dissent.