United States of America v. Robert A. Kuzlik

1 This case was set for oral argument on November 2, 2006. On
November 1, 2006, we granted Kuzlik’s emergency motion for
extension of the date for oral argument pursuant to Local Rule
34(e). Upon further review of the issue presented, we have
determined that oral argument is unnecessary and will decide the
appeal on the parties’ briefs.
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1007
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
R OBERT A. K UZLIK ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 05 CR 50032—Philip G. Reinhard, Judge.
____________
S UBMITTED N OVEMBER 2, 2006—D ECIDED N OVEMBER 20, 2006 1
____________
Before B AUER , R IPPLE , and M ANION , Circuit Judges.
B AUER , Circuit Judge. A jury convicted Robert Kuzlik of
eight counts of mail fraud in violation of 18 U.S.C. § 1341.
On appeal, Kuzlik argues that the district court abused its
discretion in admitting evidence at trial pertaining to

-- 1 of 6 --

2 No. 06-1007
Kuzlik’s financial well-being, or lack thereof, as evidence of
his motive to commit the fraud with which he was charged.
He requests that we remand this case to the district court
for a new trial. We affirm Kuzlik’s conviction.
I. Background
A federal grand jury returned an eight-count indictment
against Kuzlik on March 29, 2005. The indictment charged
Kuzlik with devising and participating in a scheme to
defraud Hummingbird Growth, Inc. (“Hummingbird”) and
to obtain its property by means of materially false and
fraudulent pretenses, representations, and promises.
Specifically, the indictment alleged that Kuzlik embezzled
$44,246.44 from Hummingbird, a client of his book-
keeping and tax service business, RAK Enterprises, Inc.
(“RAK”), by depositing Hummingbird’s tax deposit checks
into RAK’s bank account rather than the bank’s trust
account. Each of the eight counts also charged Kuzlik with
mail fraud.
Prior to trial, the government filed a Notice of Rule 404(b)
Evidence and supporting memorandum, stating its inten-
tion to offer specific information and acts relating to
Kuzlik’s financial condition before and during the execution
of the alleged fraudulent scheme. Pursuant to Federal
Rules of Evidence 401, 402, and 403, Kuzlik moved
in limine to exclude evidence of his prior criminal convic-
tions and evidence relating to his allegedly improper
attainment of credit from various banks and credit card
companies, as well as any misstatements of his financial
condition to other organizations. The government also filed
a Supplemental Notice of Rule 404(b) Evidence relating to
additional evidence of Kuzlik’s financial condition that it
intended to offer.
At the pretrial hearing, the district court ruled that
evidence of Kuzlik’s debts, his debt defaults, and his bank

-- 2 of 6 --

No. 06-1007 3
account overdrafts during the relevant period was admissi-
ble because it showed his motive for engaging in the
fraudulent scheme. Such evidence included Kuzlik’s
defaults on his home mortgage payments and related
foreclosure proceedings; a default judgment against Kuzlik
in McHenry County, Illinois; his failure to pay real estate
taxes for tax years 1998 and 1999 and a related tax sale; his
defaults on his student loan payments; his defaults on
payments of more than $17,000 in credit card debt; an
unpaid Waste Management bill; a bill from Kyler Excava-
tion that was reduced to a default judgment; a judgment
against Kuzlik in Kane County in the amount of $29,461;
his overdrafts from his and RAK’s bank accounts; and his
default on a $15,000 promissory note. In allowing the
government to introduce this evidence, the district court
determined that the probative value of such evidence was
not outweighed by the danger of unfair prejudice.
The jury found Kuzlik guilty on all eight counts in the
indictment. Kuzlik subsequently filed a motion for a new
trial, arguing, in part, that he was denied a fair trial due to
the district court’s error in allowing the government to
introduce evidence of his financial condition. After denying
Kuzlik’s motion for a new trial, the district court sentenced
him to 30 months imprisonment, followed by three years of
supervised release, and ordered him to pay $44,246.44 in
restitution. Kuzlik then filed this timely appeal.
II. Discussion
Kuzlik challenges the district court’s admission of evi-
dence relating to his financial condition. The district court
admitted evidence of Kuzlik’s financial condition under
Federal Rule of Evidence 404(b) for the purpose of showing
Kuzlik’s motive for engaging in the fraudulent scheme. We
review the district court’s evidentiary rulings for an abuse
of discretion. United States v. Thomas, 453 F.3d 838, 845

-- 3 of 6 --

4 No. 06-1007
(7th Cir. 2006). We will reverse an evidentiary ruling only
where no reasonable person would agree with the decision
made by the trial court. Id.
Generally, evidence of a defendant’s other acts, wrongful
or otherwise, is inadmissible if the purpose of such evidence
is to show the defendant’s propensity to commit a crime or
to show that he or she acted in conformity with that
propensity on the occasion in question. United States v.
James, 464 F.3d 699, 709 (7th Cir. 2006); Fed.
R. Evid. 404(b). Such evidence is admissible, however, if
it is offered to establish proof of the defendant’s motive,
opportunity, intent, preparation, plan, knowledge, iden-
tity, or absence of mistake or accident, id., providing that
the probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice. United States
v. Bursey, 85 F.3d 293, 296 (7th Cir. 1996) (citations
omitted).
Kuzlik’s appeal only challenges the district court’s ruling
on the evidence’s probative value and potentially prejudicial
effect. He argues that the district court abused its discre-
tion in admitting evidence of his financial condition because
its probative value was substantially outweighed by the
danger of unfair prejudice. Because the seminal issue for
the jury was his state of mind, Kuzlik argues, the jury was
unable to appreciate the “extremely fine distinction”
between propensity and motive. As a result, he contends
that the jury was confused and misled by the evidence of his
financial condition. We disagree.
There was no danger of juror confusion in this case
because there is no overlap between evidence of Kuzlik’s
motive to commit fraud and his propensity to commit fraud.
See United States v. Cunningham, 103 F.3d 553, 556 (7th
Cir. 1996) (explaining that propensity evidence and motive
evidence need not overlap when, for example, past drug
convictions are used to show that a defendant in a robbery

-- 4 of 6 --

No. 06-1007 5
case is an addict and his addiction is offered as the motive
for his robbery). The sorry state of Kuzlik’s finances, his
debts, default judgments, and bank overdrafts, was offered
as evidence of his motive to embezzle the $44,246.44, not as
evidence that Kuzlik had a taste or compulsion for financial
fraud. See id. (explaining that propensity evidence and
motive evidence overlap when the crime is motivated by a
taste for engaging in the crime or a compulsion to engage in
the crime, like an addiction, rather than for some other
advantage to which the crime is instrumental). See also
United States v. Bardsley, 884 F.2d 1024, 1027-28 (7th Cir.
1989) (returned checks properly admitted under Rule 404(b)
as evidence of defendant’s motive to commit offense because
it showed that he was having financial problems).
Moreover, the district court cured even the remote
potential for unfair prejudice by instructing the jury that
evidence of Kuzlik’s debts and other acts was to be consid-
ered only for the purpose of establishing his motive to
commit the crime, and we presume that the jurors followed
this instruction. See United States v. Eberhart, 434 F.3d
935, 938-39 (7th Cir. 2006). The district court properly
admitted evidence of Kuzlik’s financial problems as evi-
dence of his motive to commit the fraud with which he was
charged.
III. Conclusion
For the foregoing reasons, we A FFIRM Kuzlik’s conviction.

-- 5 of 6 --

6 No. 06-1007
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-20-06

-- 6 of 6 --