In FBAR Collection Case, NYT and WSJ Articles on U.S. Offshore Efforts Admissible Against Avid Reader of the Publications (12/4/20)

In United States v. Briguet, 2020 U.S. Dist. LEXIS 221467 (E.D. N.Y. 2020), CL here, in an FBAR collection suit, the Court denied Briguet’s motion in limine to exclude certain New York Times and Wall Street Journal articles published prior to the FBAR filing date.  The Court describe the articles (Slip op. p. 1):  “The 96 newspaper articles in question discuss the Government's efforts to identify U.S. taxpayers with offshore bank accounts and UBS's agreement to provide the Government with account holder information.” The Government sought to introduce the evidence to show that Briguet knew (or should have known in the acting recklessly sense) of the FBAR filing requirements because of the articles in conjunction with Briguet’s testimony that he reads the financial pages of these two publications every day.

In a very short opinion, the Court holds:  (i) the articles are not hearsay because introduced as circumstantial evidence of Briguet’s state of mind and not for the truth of the content of the articles; (ii) the articles are relevant because of Briguet’s testimony except possibly for articles after the FBAR filing deadline; and (iii) the articles would not unduly prejudice the jury’s deliberations reasoning (Slip Op.3)

Defendant argues that if the articles are admitted "the jury may be left with the impression that the UBS case, DOJ's Swiss bank crackdown, and the IRS's offshore voluntary disclosure program were 'hot issues' to investors who read the New York Times and Wall Street Journal and . . . infer . . . that Mr. Briguet probably read some of the articles at issue." Def. Mot., ECF No. 44 at 4-5. Although somewhat overstated, Defendant's observation is valid but in fact supports the admissibility of the news articles. There is nothing unduly prejudicial about the articles. Evidence is prejudicial, but in this instance any prejudicial effect is entirely coextensive with the probative value of the articles and therefore not unduly prejudicial. That said, there may be other valid Rule 403 considerations with regard to the articles published after the filing deadline in question. For that reason, the Court defers ruling on that portion of the defense motion.

In this case, Briguet demanded a jury trial which will, presumably, address the issue of willfulness.

The CourtListener docket entries are here where some other documents are available free.  These docket entries show:

• Amended Complaint (Dkt. 5), here, showing the FBAR penalty as  $2,424,831.00.
• Answer and Demand for Jury Trial (Dkt 8), here, 
• The documents related to the motion in limine discussed above (other than the Memorandum and Order discussed above) do not as now appear on the CourtListener docket entries for download.  (See Dkt. Numbers 44, 45, 46, 47)
• The documents related to the Government's Motion in Limine do appear.  In that Motion (Dkt 41), here, the Gov’t argues Briguet’s bank records are admissible, amount of penalties should not be disclosed to the jury, and the Government should be able to cross examine Briguet’s accountant with leading questions.  Briguet's Response in Opposition (Dkt. 42), is here, and the Government's Reply (Dkt. 43) is here.