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United States v. DeGeorge - 380 F.3d 1203 (9th Cir. 2004)


Appellate courts recognize two categories of evidence that may be considered "inextricably intertwined" with a charged offense and therefore admitted without regard to Fed. R. Evid. 404(b). First, evidence of prior acts may be admitted if the evidence "constitutes a part of the transaction that serves as the basis for the criminal charge." Second, prior act evidence may be admitted "when it was necessary to do so in order to permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime."


The government alleged that Rex K. DeGeorge participated in a scheme to defraud by purchasing a yacht, inflating its value through a series of sham transactions, obtaining insurance on the yacht at the inflated value, scuttling it off the coast of Italy, and attempting to collect the insurance proceeds, in part by lying about the cause of the sinking during civil litigation with the yacht's insurer. DeGeorge appealed his conviction and sentence following a month-long jury trial for conspiracy, mail fraud, wire fraud, and perjury.


Did the trial court err in concluding that the prior loss evidence was "inextricably intertwined" with the underlying offense?




The appellate court found that the trial court did not err in finding that the pre-trial delay did not violate DeGeorge's due process rights and it properly denied DeGeorge's pre-trial motion to dismiss the charges based on a delay of more than six years. Also, the government showed that it was entitled to an order suspending the statute of limitations under 18 U.S.C.S. § 3292. Thus, the trial court properly denied DeGeorge's motion to dismiss the mail fraud and wire fraud charges. Because DeGeorge's perjury occurred during the civil trial as part of his scheme to defraud and not during the criminal investigation as part of an attempt to obstruct justice, his perjury was not an "obstruction offense." Thus, the two-level enhancement for obstruction of justice was improper.

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