United States v. Din ( 2021 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 19-2198
UNITED STATES,
Appellee,
v.
BURHAN UD DIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Kayatta, Barron, and Gelpí,
Circuit Judges.
Elizabeth A. Latif and Law Offices of Elizabeth A. Latif PLLC
on brief for appellant.
Andrew E. Lelling, United States Attorney, and Mark T.
Quinlivan, Assistant United States Attorney, on brief for
appellee.
December 2, 2021
PER CURIAM. Following a jury trial, defendant-
appellant Burhan Ud Din was convicted on six counts of willful
failure to collect and pay payroll tax under 26 U.S.C. § 7202.
Defendant's sole challenge on appeal is that there was insufficient
evidence that he had acted with willfulness. For purposes of
criminal tax laws, the element of willfulness requires the
government to prove the defendant's "voluntary, intentional
violation of a known legal duty." Cheek v. United States, 498 U.S.
192, 201 (1991). "Circumstantial evidence of willfulness, standing
alone, can suffice to sustain the government's burden of proof."
United States v. Stierhoff, 549 F.3d 19, 26 (1st Cir. 2008).
"Willfulness may be inferred from any conduct, the likely effect
of which would be to mislead or to conceal." Id. (internal
quotations omitted).
Where preserved, this court would review de novo to
determine "whether the evidence, construed favorably to the
government, permitted rational jurors to conclude, beyond a
reasonable doubt, that the defendant was guilty as charged."
Stierhoff, 549 F.3d at 26. Here, however, defendant concedes that
he did not preserve the issue in the district court. Accordingly,
"[t]his court reviews . . . only for clear and gross injustice."
United States v. Morel, 885 F.3d 17, 22 (1st Cir. 2018) (internal
quotation omitted). "That is a tall order for any defendant, since
the clear-and-gross-injustice standard is a particularly exacting
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variant of plain error review." United States v. Freitas, 904 F.3d
11, 23 (1st Cir. 2018) (internal quotations omitted).
When viewed in the light most favorable to the
prosecution, the trial evidence tends to show, among other things,
that defendant failed to withhold contributions from employees'
paychecks; failed to give tax forms to an employee requesting them;
on various occasions provided information to an accountant that
undercounted the number of employees working for his businesses;
and in turn signed various tax forms with an inaccurate number of
employees listed. Evidence was also introduced tending to show
that defendant acted with sophistication in other areas of
business, namely, entering into lease agreements, applying for
permits, contracting for supplies, tracking business income and
expenditures, and running day-to-day operations.
Now on appeal, defendant fails to show that upholding
the jury's verdict would work a "clear and gross injustice." Morel,
885 F.3d at 22. This court has considered each of defendant's
arguments and discerns no basis to disturb the verdict,
particularly where the jury acted within its purview of weighing
evidence and making credibility determinations. United States v.
Lopez-Lopez, 282 F.3d 1, 19 (1st Cir. 2002) ("On appeal, our role
is to determine whether the jury's verdict is supported by a
plausible rendition of the evidence, not to weigh the evidence or
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make credibility judgments that are properly within the purview of
the jury.").
Affirmed.
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