2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-23-2013

USA v. Jonathan Wiktorchik

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3544

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-3544

_____________

UNITED STATES OF AMERICA

v.

JONATHAN PAUL WIKTORCHIK, JR.

 Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No. 2-10-cr-00064-001)

District Judges: Honorable Robert F. Kelly

Submitted under Third Circuit LAR 34.1 (a)

on May 21, 2013

(Filed: May 23, 2013)

Before: RENDELL, GREENAWAY, JR. and GARTH, Circuit Judges

O P I N I O N 

RENDELL, Circuit Judge:

In this appeal, Defendant Jonathan Paul Wiktorchik, Jr. urges that he is entitled to 

a new trial because the District Court improperly admitted evidence of a prior felony 
2

conviction. No objection was raised to the admission of this evidence, and we find no 

error, let alone plain error. Accordingly, we will affirm. 

I. Background

On March 30, 2008, at approximately 2:54 a.m., a fire destroyed the Mountain 

View Plaza located in Ottsville, Bucks County, Pennsylvania. The plaza consisted of two 

separate buildings occupied by five small businesses, one of which – Bucks Chiropractic 

Center – was owned by Wiktorchik. An investigation into the cause and origin of the fire 

was launched by the Pennsylvania State Police and the Bureau of Alcohol, Tobacco, 

Firearms and Explosives (ATF). By May 29, 2008, ATF Special Agents had conducted 

three interviews with Wiktorchik; Wiktorchik changed his story each time. Wiktorchik 

did indicate in his first interview that he planned to sell his practice and had listed it with 

two real estate agencies, but no one had offered to purchase it. Subsequently, 

investigators executed a search warrant at his residence where they seized two empty 

five-gallon cans of gasoline, two computers, and numerous financial records. 

In an incident separate from the fire, in June 2007, Wiktorchik had been convicted 

of insurance fraud in the Bucks County Court of Common Pleas. Wiktorchik‟s 

chiropractic license was suspended in January 2008 as a result of his conviction. 

An audit of Wiktorchik‟s financial records revealed that his income generated 

from patient fees dropped from $28,312 in January 2007 to $9,399 by December of 2007 

and to $8,415 by March 2008. Wiktorchik‟s bank statements and a net cash flow analysis 

showed similar declines in total revenue and cash flow from June 2007 to March 2008. 
3

Wiktorchik and his wife maintained a $212,000 fire insurance policy with Zurich 

North America, which included additional areas of coverage beyond the basic $212,000 

policy. After the fire, Zurich launched its own investigation and hired a forensic 

accountant to review the claim and documents submitted by Wiktorchik. During the 

investigation, Zurich‟s accountant asked Wiktorchik about the significant drop in 

revenue, and Wiktorchik admitted that his conviction had negatively affected his practice. 

On February 4, 2010, a grand jury returned a seven-count indictment against 

Wiktorchik, charging him with malicious damage by means of fire of a building used in 

interstate commerce, in violation of 18 U.S.C. § 884(i), use of fire to commit a felony, in 

violation of 18 U.S.C. § 844(h), mail fraud, in violation of 18 U.S.C. § 1341, three counts 

of making false statements to the government, in violation of 18 U.S.C. § 1001, and 

interfering with administration of IRS law, in violation of 26 U.S.C. § 7212(a). 

Wiktorchik proceeded to trial in March 2011. At trial, the government presented 

evidence regarding Wiktorchik‟s financial situation, showing his significant decline in 

income after his 2007 conviction and 2008 license suspension. The government also 

elicited testimony from two witnesses – ATF Agent Jesse Lampf and Phillip Moretti of 

Zurich Insurance – regarding Wiktorchik‟s previous felony conviction. Lampf testified 

that Wiktorchik had admitted in their first interview that he had been convicted of a state 

felony offense in 2007. Moretti testified that he was aware before his second meeting 

with Wiktorchik that Wiktorchik had a felony conviction, and Wiktorchik admitted this 

during their meeting. Finally, Wiktorchik, who testified on his own behalf at trial, 

admitted on cross-examination that he was convicted of a felony in 2007 and that his 
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chiropractic license had been suspended in January 20008. The government elicited this 

testimony without identifying the offense of conviction or eliciting any further details 

about the conviction.

The jury found Wiktorchik guilty of all counts, except interference with the 

administration of IRS law. The District Court subsequently sentenced Wiktorchik to 204 

months of imprisonment and a five-year term of supervised release. Additionally, the 

District Court ordered Wiktorchik to pay $1,585,012.84 in restitution and a $600 special 

assessment.

The instant appeal followed.1

II. Discussion

On appeal Wiktorchik argues that the District Court erroneously admitted 

testimonial evidence of a prior felony conviction in violation of Federal Rule of Evidence 

404(b) and that this unduly prejudiced the outcome of his case. He specifically calls into 

question the admission of testimony by Lampf and Moretti, both of whom referenced 

Wiktorchik‟s 2007 state felony conviction. Wiktorchik contends that the admission of 

such testimony amounted to the erroneous introduction of propensity evidence, thus 

entitling him to a new trial. For the reasons stated below, we disagree. 

Because Wiktorchik did not object to the District Court admitting evidence of his 

2007 felony conviction at trial, we review Wiktorchik‟s claim for plain error. Puckett v. 

 

1 We have jurisdiction pursuant to 28 U.S.C. § 1291.
5

United States, 556 U.S. 129, 134-35 (2009).2 For Wiktorchick to prevail on plain error 

review, he must demonstrate “(1) there is an „error‟; (2) the error is „clear or obvious, 

rather than subject to reasonable dispute‟; (3) the error „affected the appellant‟s 

substantial rights, which in the ordinary case means‟ it „affected the outcome of the 

district court proceedings‟; and (4) „the error seriously affect[s] the fairness, integrity or 

public reputation of judicial proceedings.‟” United States v. Marcus, 560 U.S. 258, --, 

130 S. Ct. 2159, 2164 (2010) (quoting Puckett, 556 U.S. at 135). 

Federal Rule of Evidence 404(b) provides in relevant part that: “Evidence of a 

crime, wrong, or other act is not admissible to prove a person‟s character in order to show 

that on a particular occasion the person acted in accordance with the character.” Fed. R. 

Evid. 404(b)(1). However, “[t]his evidence may be admissible for another purpose, such 

as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of 

mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). 

“We have recognized that Rule 404(b) is a rule of inclusion rather than of 

exclusion.” United States v. Jemal, 26 F.3d 1267, 1272 (3d Cir. 1994); see also United 

States v. Long, 574 F.2d 761, 766 (3d Cir. 1978) (finding draftsmen of 404(b) intended to 

“emphasize [the] admissibility of „other crime‟ evidence”). And we favor the admission 

of other criminal conduct if such evidence is “„relevant for any purpose other than to 

show a mere propensity or disposition on the part of the defendant to commit the crime.‟” 

 

2

Failing to abide by the contemporaneous-objection rule ordinarily precludes raising an 

unpreserved claim of trial error on appeal, see United States v. Young, 470 U.S. 1, 15 n.12 

(1985); however, Rule 52(b) of the Federal Rules of Criminal Procedure recognizes a limited 

exception to that preclusion in the form of plain error review, Puckett, 556 U.S. at 135.
6

Id. at 765 (quoting United States v. Stirone, 262 F.2d 571, 576 (3d Cir. 1958), rev’d on 

other grounds 361 U.S. 212 (1960)). 

While Wiktorchik argues that the testimonial evidence was nothing more than 

propensity evidence, the record reveals that the testimony aided the government in 

establishing Wiktorchik‟s motive for the arson, and helped complete the story of the 

crime for the jury. The evidence was important to the government in establishing 

Wiktorchik‟s motive as it explained why his finances declined after June 2007 and why 

his license to practice was suspended in 2008 – both consequences of his conviction. 

This allowed the government to prove Wiktorchik‟s dire financial circumstances resulting 

from his prior conviction in order to successfully establish motive. Thus, the government 

presented this evidence to “complete the story” of the crime for the jury, United States v. 

Green, 617 F.3d 233, 247-48, 248 n.14 (3d Cir. 2010), and the evidence aided, rather 

than improperly influenced, the jury‟s decision. 

Wiktorchik also contends that the admission of the record of his prior conviction 

was unnecessary because the government had “ample other indicia of [his] involvement,” 

rendering the testimony irrelevant, and substantially more prejudicial than probative.3 

(Appellant Br. 24-25.) However, by arguing that any reference to his prior conviction 

was unnecessary because the government had “ample other indicia of [his] involvement” 

even without evidence of his prior conviction, Wiktorchik acknowledges the likelihood of 

 

3

The other evidence included: evidence confirming the fire originated in Wiktorchik‟s 

chiropractic center, that gasoline had been poured throughout the center and set on fire, 

Wiktorchik‟s lying about his whereabouts on the night of the fire and his injuries, the substantial 

monthly payment for equipment and office space, and Wiktorchik‟s inability to sell his practice. 

(Appellee Br. 8-9, 12-15, 18-20.)
7

his being found guilty based solely on other evidence. Thus, Wiktorchik‟s argument 

implicitly concedes that the testimonial evidence did not affect the outcome of his trial, as 

the government had sufficient evidence to convict him even without it. 

Last, Wiktorchik argues that because the District Court did not give a limiting 

instruction until the closing charge, the testimonial evidence at issue had the effect of 

unfairly establishing that he had the propensity to commit crimes. We have held that a 

proper limiting instruction can ameliorate possible prejudice. See United States v. Lee, 

612 F.3d 170, 191-92 (3d Cir. 2010) (finding no error where court charged jury to 

consider evidence of defendant‟s gun possession charge for the limited purposes for 

which it was admitted) (citing Huddleston v. United States, 485 U.S. 681, 691-92 (1988)

(finding that protection against unfair prejudice comes from a jury instruction that 404(b) 

evidence is to be considered only for the proper purpose for which it was admitted)). In 

its final charge to the jury the District Court instructed the jury that they “may not 

consider a prior conviction as evidence of guilt of the crime for which [Wiktorchik] is 

now on trial.” (App. at 950.) Defendant did not object to this instruction. Because the 

District Court explicitly instructed the jury in such a manner, we cannot find any 

prejudicial effect on this ground. See Richardson v. Marsh, 481 U.S. 200, 206 (1987) 

(noting “the almost invariable assumption of the law that jurors follow their 

instructions”).

III. Conclusion

Accordingly, we find no error, let alone plain error, in the admission of this 

evidence, and we will therefore affirm the judgment of the District Court.