United States v. Pursley ( 2007 )


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  •                                                                       F I L E D
    United States Court of Appeals
    Tenth Circuit
    PUBLISH
    January 11, 2007
    UNITED STATES CO URT O F APPEALS                Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    U N ITED STA TES O F A M ER ICA,
    Plaintiff-Appellee,
    v.                                               No. 05-1428
    CARL W ILLIA M PURSLEY, JR.,
    Defendant-Appellant.
    A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
    FOR T HE DISTRICT OF COLORADO
    (D.C. NO . 03-CR-00415-REB)
    M arci A. Gilligan, Richilano & Gilligan, P.C., Denver, Colorado, (Patrick L.
    Ridley and Robert T. Fishman, Ridley M cGreevy W eisz P.C., Denver, Colorado,
    with her on the brief) for Defendant-Appellant.
    James C. M urphy, Assistant United States Attorney (W illiam J. Leone, United
    States A ttorney, and M atthew T. Kirsch, Assistant Untied States A ttorney, with
    him on the brief), Office of the United States Attorney, Denver, Colorado, for
    Plaintiff-Appellee.
    Before M U RPH Y, A ND ER SO N, and TYM KOVICH, Circuit Judges.
    T YM K O VIC H, Circuit Judge.
    I. Introduction
    W hile jailed in a Colorado state prison, Carl W illiam Pursley was indicted
    by the United States for tax fraud. The government alleged that Pursley filed
    fraudulent tax returns on behalf of himself and other prisoners and received
    refund payments as a result. He was subsequently convicted by a federal jury on
    one count of conspiracy to defraud the United States, in violation of 
    18 U.S.C. § 371
    , and two counts of aiding and abetting the preparation of false tax returns,
    in violation of 
    26 U.S.C. § 7206
    (2).
    On appeal, Pursley raises four claims challenging his conviction and
    sentence. The district court erred by (1) failing to dismiss the case due to
    violations of the Interstate A greement on Detainers A ct; (2) refusing to sever his
    trial from that of a co-defendant; (3) allowing the jury verdict to stand despite
    insufficient evidence to support the conspiracy conviction and, relatedly,
    contributing to jury confusion by improperly instructing them on the conspiracy
    count; and (4) violating the Double Jeopardy Clause while imposing consecutive
    sentences for different crimes that w ere supported by the same evidence.
    Taking jurisdiction pursuant to 
    18 U.S.C. § 3742
    (a) and 
    28 U.S.C. § 1291
    ,
    we AFFIRM .
    II. Factual Background
    Carl Pursley and his co-defendant, W illiam W ardell, were indicted by the
    United States on August 20, 2003, on various counts of tax fraud. Pursley was
    specifically charged with conspiring to defraud the Internal Revenue Service by
    -2-
    assisting in the preparation of false tax returns for the purpose of fraudulently
    obtaining refunds based on the Earned Income Credit. At the time the federal
    indictment was filed, Pursley and W ardell were prisoners of Colorado, serving
    sentences on prior convictions.
    To obtain his availability for trial, the United States lodged a detainer
    against Pursley on August 21, 2003, and obtained custody by filing a writ of
    habeas corpus ad prosequendum on October 9, 2003. Pursley was transferred to
    another facility under federal control where he remained for twenty-two months
    while he awaited trial on the tax fraud charges. During that period, Colorado
    filed a new indictment against Pursley in an unrelated criminal case.
    Accordingly, Colorado sought his presence in state court for preliminary
    proceedings. On at least two occasions, the state filed w rits of habeas corpus ad
    prosequendum to obtain temporary custody to escort Pursley to court. Each time,
    he was returned to federal prison the same day. At no time was Pursley returned
    to a Colorado corrections facility to resume serving his initial state prison
    sentence.
    On April 25, 2005, Pursley moved to dismiss the federal indictment with
    prejudice on the ground that the United States had violated the “anti-shuttling”
    provision of the Interstate Agreement on Detainers Act in releasing him to the
    temporary custody of Colorado. The district court denied his motion, and the
    case proceeded to trial. Before it began, Pursley moved to have his trial severed
    -3-
    from that of his co-defendant, alleging that they would present antagonistic
    defenses. The district court denied this motion as w ell.
    On M ay 25, 2005, a federal jury convicted Pursley on one count of
    conspiracy to defraud the United States and two counts of aiding and abetting the
    preparation of false tax returns. He was sentenced to 96 months
    incarceration— 60 months imprisonment on the conspiracy count to be served
    consecutively with 36-month concurrent sentences for each count of aiding and
    abetting. He appeals both his conviction and sentence.
    III. Discussion
    Pursley raises four issues on appeal. W e address each in turn.
    A. Interstate Agreement on D etainers
    Pursley argues the United States violated the Interstate Agreement on
    Detainers (IAD or Agreement), 18 U.S.C. App. § 2 [hereinafter IAD]; 
    Colo. Rev. Stat. § 24-60-501
     (2004), by transferring him from a state to federal prison and
    then allowing state officials to escort him to state proceedings on new state
    charges while he was in federal custody. Accordingly, he contends that the
    district court erred by failing to dismiss the federal indictment and that we should
    reverse his conviction.
    The IAD creates among its contracting parties uniform procedures for
    lodging and executing a detainer, “a legal order that requires a State in which an
    individual is currently imprisoned to hold that individual . . . so that he may be
    tried by a different State for a different crime.” Alabama v. Bozeman, 533 U.S.
    -4-
    146, 148 (2001). For purposes of the IAD, the state in which a prisoner is
    initially serving a sentence is classified as the “sending state” (here, Colorado),
    and the state that subsequently indicts the prisoner and obtains custody is the
    “receiving state” (here, the United States). 1 IAD, Art. II(b)–(c). The Agreement
    “provides for expeditious delivery of the prisoner to the receiving State for trial
    prior to the termination of his sentence in the sending State” and “seeks to
    minimize the consequent interruption of the prisoner’s ongoing prison term.”
    Bozeman, 533 U.S. at 148.      The Agreement is based on the premise that prison
    treatment and rehabilitation programs are negatively impacted when a prisoner is
    indicted and transferred to a new jurisdiction and then returned to the original
    place of imprisonment before trial is had on the new charges. See IA D, Art. I.
    The Agreement authorizes transfer of a prisoner from a sending state to a
    receiving state as follow s:
    The appropriate officer of the jurisdiction in which an untried indictment
    . . . is pending [i.e., the receiving state] shall be entitled to have a prisoner
    against whom he has lodged a detainer and w ho is serving a term of
    imprisonment in any party State made available in accordance with article
    V (a) hereof upon presentation of a written request for temporary custody
    or availability to the appropriate authorities of the State in which the
    prisoner is incarcerated [i.e, the sending state].
    Id. at Art. IV(a). The A greement protects the prisoner from excessive transfers
    through the so-called “anti-shuttling” provision, which states,
    1
    The United States and Colorado are party “States” to the Agreement.
    IA D § 2; 
    Colo. Rev. Stat. § 24-60-501
     (2006),
    -5-
    If trial is not had on any indictm ent . . . contemplated hereby prior to
    the prisoner’s being returned to the original place of imprisonment to
    article V(e) hereof, such indictment . . . shall not be of any further force
    or effect, and the court shall enter an order dismissing the same with
    prejudice.
    
    Id.
     at Art. IV(e). Accordingly, by its express terms, the IAD is violated under
    two conditions— when a prisoner, who is serving a sentence in the sending state
    and indicted by the receiving state, is (1) transferred to the receiving state based
    on its lodging a detainer against him and requesting custody, 
    id.
     at Art. IV(a), and
    then (2) returned to the “original place of imprisonment” before standing trial on
    the untried indictment, 
    id.
     at Art IV(e).
    In this case, the first condition of an IAD violation was clearly met. While
    serving his sentence in Colorado state prison, Pursley was indicted by the United
    States, which lodged a detainer against him and, by means of a writ of habeas
    corpus ad prosequendum, obtained custody and transferred him to a federal
    facility. See U nited States v. M auro, 
    436 U.S. 340
    , 348 (1978) (holding the
    combination of lodging a detainer and obtaining custody by means of a writ of
    habeas corpus ad prosequendum triggers application of the IA D). 2
    2
    The government contends that because Colorado only filed a writ of
    habeas corpus ad prosequendum to obtain custody over Pursley from the federal
    government, the IAD is not implicated. W hile the Supreme Court has held that a
    writ of habeas corpus ad prosequendum by itself does not trigger the IA D, see
    M auro, 436 U .S. at 349, the IAD was already triggered by the federal
    government’s (i.e., the receiving state’s) actions in this case and the anti-shuttling
    provision is thus applicable. The government’s argument would only have
    relevance if the federal government was the sending state.
    -6-
    The principal issue here is whether the second condition of an IAD
    violation was met. The prosecution argues Pursley was never “returned to the
    original place of imprisonment” within the meaning of the IAD because he was
    never sent back to a Colorado prison. Pursley objects to this literal reading of the
    text and argues that the anti-shuttling provision be interpreted to include any type
    of custody over the prisoner by the sending state.
    Pursley argues that the Supreme Court in Alabama v. Bozeman interpreted
    the IAD to require dismissal of pending charges by the receiving state when a
    prisoner is placed in the custody of the sending state, even in circumstances
    where a prisoner’s custody is of short duration.
    In that case, the prisoner, Bozeman, was serving time in a federal prison
    when Alabama indicted him on an unrelated crime. Bozeman, 533 U.S. at 151.
    Alabama lodged a detainer against him and subsequently obtained custody over
    him. The state then transported him approximately 80 miles to a county jail,
    where he spent the night before appearing for his arraignment the next morning.
    He was returned to federal prison that evening and resumed serving his original
    sentence.
    At the outset, the Supreme Court acknowledged, “Alabama does not deny a
    violation of A rticle IV(e) as literally interpreted, for it concedes that its officials
    ‘returned’ Bozeman to his ‘original place of imprisonment,’ before Bozeman’s
    county court ‘trial’ was ‘had.’” Id. at 152 (emphasis in original). The Court
    rejected Alabama’s argument that spending one night in state prison constituted
    -7-
    only a “de minimus” or “technical” violation. Id. at 153. Rather, the C ourt
    reasoned, “every prisoner arrival in the receiving State, whether followed by a
    very brief stay or a very long stay in the receiving State, triggers IV(e)’s ‘no
    return’ requirement.” Id. at 154 (emphasis in original). In other words, Article
    IV(e)’s anti-shuttling provision applies whenever a prisoner is provided to a
    receiving state pursuant to a detainer. The length of the prisoner’s custody by the
    receiving state has no bearing on the operation of the “no return” requirement.
    Accordingly, the Court concluded, the Alabama charges should have been
    dismissed.
    Pursley’s attempt to compare his case to Bozeman is unpersuasive because
    he was not “returned to [his] original place of imprisonment” under A rticle IV (e).
    In Bozeman, the prisoner w as serving time in a federal penitentiary under a
    federal sentence. After his short foray into state court and prison pursuant to a
    detainer, Bozeman was returned to the same federal prison to resume serving his
    original federal sentence. The Supreme Court has held that this is a clear
    violation of Article IV(e). 3 In this case, Pursley was never returned to Colorado
    to resume serving his original state sentence. Instead, his only trip back into
    Colorado state jurisdiction was to answer a third set of state charges unrelated to
    3
    Pursley’s reliance on United States v. Kelley, 
    300 F. Supp. 2d 224
     (D .
    M ass. 2003), is equally unavailing considering the district court in that case also
    found the receiving state shuttled the defendant back to the sending state to
    resume serving his original sentence prior to trial being had. 
    Id. at 233
    . This is
    not the case here.
    -8-
    his original sentence or federal charges. He never was transferred to the Colorado
    Department of Corrections to begin anew his service of his original state
    sentence. Furthermore, the one-day excursion to the Colorado state courthouse
    for arraignment was only by chance in Colorado, the state of his original
    imprisonment. If any other state, such as W yoming, had asked the federal
    government to provide Pursley for a one-day arraignment under similar
    circumstances, we do not see how this would have violated the anti-shuttling
    provision.
    W e note that our interpretation is supported by the plain language of the
    anti-shuttling provision and the IAD’s purpose. First, Article IV(e) applies when
    the prisoner is “returned . . . to the original place of imprisonment pursuant to
    article V(e).” IAD (emphasis added). Article V(e) provides that, “[a]t the earliest
    practical time consonant with the purposes of this agreement, the prisoner shall be
    returned to the sending State.” 
    Id.
     Read together, these words suggest that the
    prisoner must be sent back to recommence serving his original sentence to trigger
    the anti-shuttling provision. Under Article V(e), a prisoner should be returned to
    the sending state to resume his original sentence following the disposition of the
    receiving state’s trial. Article V(e), on its face, does not contemplate other
    reasons to send a prisoner back to the sending state.
    Second, the purpose of the IAD’s anti-shuttling provision is to minimize
    the uncertainties attendant with outstanding charges which interfere with a
    prisoner’s rehabilitation and treatment programs and to encourage the expeditious
    -9-
    and orderly disposition of such charges. See IAD, Art. I. As we have said,
    Congress did not want prisoners to “have programs of treatment and rehabilitation
    obstructed by numerous absences in connection with successive proceedings
    related to pending charges in another jurisdiction.” United States v. Wilson, 
    719 F.2d 1491
    , 1494 (10th Cir. 1983). The mere temporary transfer of a prisoner to a
    different jurisdiction to answer pending charges while in the custody of a
    receiving state does not implicate these concerns so long as it does not
    impermissibly lengthen a prisoner’s stay in the receiving state. 4 W here a transfer
    is of short duration and does not interrupt trial proceedings in the receiving state
    in violation of the IAD’s other provisions, as is the case here, a prisoner spends
    no additional time away from the sending state and, thus, there can be no impact
    on a prisoner’s rehabilitative programs and treatment in the sending state. On the
    other hand, the expeditious resolution of untried charges in a different
    jurisdiction, such as the third set of Colorado charges Pursley faced, is fully
    consistent w ith the purposes of the IA D.
    For these reasons, we conclude that the IA D’s anti-shuttling provision is
    not triggered by the circumstances presented here. 5
    4
    A receiving state must comm ence trial on untried indictments within one
    hundred twenty days from the arrival of the prisoner. IAD, Art. IV(c).
    5
    The government alternatively argues that Pursley waived his IAD
    argument by failing to raise it before the pre-trial motions deadline had passed.
    Pursley responds by contending that this issue is jurisdictional and non-w aivable.
    W e had not addressed whether violations of the IAD constitute jurisdictional
    claims on direct appeal. Nevertheless, we have stated, “Absent special
    (continued...)
    -10-
    B. Trial Severance
    Pursley next argues the district court comm itted reversible error by failing
    to grant his motion to sever his trial from that of his co-defendant, W endel
    W ardell. He contends severance was necessary because the two defendants had
    planned to present antagonistic defenses and the joint trial precluded him from
    fully pursuing his theory of defense.
    W hen considering a motion for severance, a trial court engages in a three
    step inquiry. First, it must determine w hether the defenses presented are “so
    antagonistic that they are mutually exclusive.” United States v. Peveto, 
    881 F.2d 844
    , 857 (10th Cir. 1989). Second, because “[m]utually antagonistic defenses are
    not prejudicial per se,” a defendant must further show “a serious risk that a joint
    trial would compromise a specific trial right . . . or prevent the jury from making
    a reliable judgment about guilt or innocence.” Zafiro v. United States, 
    506 U.S. 534
    , 539 (1993). Third, if the first two factors are met, the trial court exercises
    its discretion and “weigh[s] the prejudice to a particular defendant caused by
    joinder against the obviously important considerations of economy and expedition
    in judicial administration.” Peveto, 
    881 F.2d at 857
    . W here the trial court
    5
    (...continued)
    circumstances, violations of the [IAD] are not grounds for collateral attack on a
    federal conviction and sentence” because “rights created by the [IAD] are
    statutory, not fundamental, constitutional, or jurisdictional in nature.”
    Greathouse v. United States, 
    655 F.2d 1032
    , 1034 (10th Cir. 1981). Because we
    have concluded the government’s conduct did not implicate the IAD in this case,
    we need not answer w hether violations of its provisions may be waived.
    -11-
    ultimately denies severance, its decision will be reversed only where the
    defendant has demonstrated an abuse of discretion. United States v. Hayes, 
    861 F.2d 1225
    , 1231 (10th Cir. 1988).
    According to Pursley, his theory of defense at trial was that he never
    prepared or assisted in the preparation of the relevant tax returns. He hoped to
    persuade the jury that (1) although funds were deposited in his account and spent,
    (2) he was not aware of how the money arrived, (3) he did not have any
    knowledge of tax returns filed in his name, nor (4) was he ever employed by
    Cimmaron Farms, the company to which his income was attributed on the returns.
    W ardell’s defense, on the other hand, was that the tax forms were legitimate— that
    Pursley had participated in their preparation, had indeed been employed by
    Cimmaron Farms, and was properly entitled to receipt of Earned Income Credit
    funds. Thus, while Pursley merely argued no crime was comm itted by him,
    W ardell maintained no crime was comm itted at all.
    Applying these factors, w e conclude the district court did not abuse its
    discretion in declining to sever the trial. Even though Pursley could establish that
    the pair’s defenses w ere mutually exclusive, we find no actual prejudice to
    Pursley under the second factor.
    W e are satisfied that Pursley’s and W ardell’s defenses w ere sufficiently
    exclusive and antagonistic under the first factor. 6 Defenses are mutually
    6
    The district court found that Pursley’s and W ardell’s defenses were not
    mutually exclusive. Dist. Order, vol. I, doc. 643, at 2–3. In doing so, we believe
    (continued...)
    -12-
    antagonistic if “the conflict between codefendants’ defenses [is] such that the
    jury, in order to believe the core of one defense, must necessarily disbelieve the
    core of the other.” United States v. Linn, 
    31 F.3d 987
    , 992 (10th Cir. 1994). In
    other words, defendants must show that “the acceptance of one party’s defense
    would tend to preclude the acquittal of the other, or that the guilt of one
    defendant tends to establish the innocence of the other.” Peveto, 
    881 F.2d at 857
    (holding mutually exclusive defenses where one defendant claimed to be
    preparing to be an informant and invited the other defendant, a purported drug
    dealer, to his house to gather information, while the other defendant claimed to be
    innocently at the house and held against his will by the first defendant).
    A jury could not simultaneously believe Pursley’s and W ardell’s theories of
    defense. Pursley either worked at Cimmaron Farms or he did not. He either
    participated in the preparation and filing of tax returns or he did not. If the jury
    believed that Pursley had no knowledge of the tax refunds and had no part in
    Cimmaron Farms, then it would necessarily have to disbelieve W ardell’s story
    that he and Pursley were legitimately entitled to file tax refunds based on their
    employment by Cimmaron Farms. Pursley’s legitimate participation in the
    Cimmaron Farms enterprise was a core element of W ardell’s defense theory.
    W ithout it, W ardell’s defense would simply collapse, casting serious doubts on
    6
    (...continued)
    that the district court conflated the first “mutually exclusive” factor and the
    second “prejudice” factor. W e find that the district court’s analysis is better
    placed under considerations of prejudice, rather than on antagonism.
    -13-
    W ardell’s claim of innocence. This is simply not a case where “the jury could
    have believed all of Defendants’ theories and acquitted all of them.” See United
    States v. Linn, 
    31 F.3d 987
    , 992 (10th Cir. 1994) (finding no mutual antagonism).
    Accordingly, we find these defenses are sufficiently antagonistic under the first
    factor.
    Nevertheless, Pursley has failed to demonstrate prejudice under the second
    factor. To establish prejudice, a defendant must point to a “specific trial right”
    that was compromised or show the jury was “prevent[ed] . . . from making a
    reliable judgment about guilt or innocence.” Zafiro, 
    506 U.S. at 539
    ; see also
    United States v. M cClure, 
    734 F.2d 484
    , 488–89 (10th Cir. 1984). Pursley argues
    prejudice must be presumed because “[w ]hen mutually exclusive defenses are
    presented there is a chance that the jury will infer from the conflict the guilt of
    both parties.” Peveto, 
    881 F.2d at 857
    . Pursley contends that, on this basis, his
    defense was less likely to be successful in a joint trial than a severed trial and,
    because of this, he opted not to present certain evidence at trial.
    W e are not persuaded that this alone will constitute prejudice for purposes
    of trial severance. “[I]t is w ell settled that defendants are not entitled to
    severance merely because they may have a better chance of acquittal in separate
    trials.” Zafiro, 
    506 U.S. at 540
     (emphasis added); see also M cClure, 
    734 F.2d at 488
     (“W e have . . . held that severance is not required simply because separate
    trials might have offered a better chance for acquittal to one or more of the
    accused.”). Despite their differing theories of defense, nothing prevented Pursley
    -14-
    from presenting evidence to support his theory even if it was inconsistent with
    W ardell’s defense.
    Second, while Pursley’s theory may establish prejudice to W ardell, it did
    not necessarily prejudice Pursley’s defense. As the district court noted in denying
    the severance motion,
    Both Pursley’s and W ardell’s proposed theories of defense tend to
    exonerate Pursley of wrongdoing. Under Pursley’s theory, he had no
    knowledge of or involvement in the alleged scheme to defraud the
    governm ent by filing false tax returns. Under W ardell’s theory, the tax
    returns filed in Pursley’s name w ere not fraudulent. If the jury believes
    either theory, it cannot find Pursley guilty of tax fraud.
    Dist. Order, vol. I, doc. 643, at 2–3. Pursley’s problem in the case was the
    lack of evidence to support his theory of defense, not his misfortune of trial
    with W ardell.
    W e therefore agree with the district court that Pursley cannot
    demonstrate prejudice from the failure to sever the trial.
    Pursley also argues this court should not defer to the district court’s
    discretion here because it failed to explicitly engage in the third step of our
    inquiry— weighing prejudice to the defendant against considerations of judicial
    economy. Yet, the district court found no prejudice at all, leaving nothing to
    balance in this step. 7
    7
    Even assuming Pursley could successfully demonstrate prejudice,
    severance would not be compelled because “the tailoring of the relief to be
    granted, if any, [is left] to the district court’s sound discretion.” Zafiro, 
    506 U.S. at 539
    ; see also United States v. Scott, 
    37 F.3d 1564
    , 1579–80 (10th Cir. 1994).
    “The decision to grant severance and order separate trials is within the sound
    (continued...)
    -15-
    In sum, the district court’s decision is supported by the facts of this case
    and, in any event, does not warrant a conclusion that it abused its discretion in
    trying Pursley and W ardell together.
    C. Sufficiency of Evidence and Jury Instruction on C onspiracy C harge
    Pursley next claims that the jury’s verdict on the conspiracy count should
    be overturned because (1) the evidence was insufficient to support the verdict,
    and (2) the jury instruction on the conspiracy charge misled the jury.
    (1) Sufficiency of the Evidence. W here a defendant claims the evidence
    was insufficient to convict, we examine the record in the light most favorable to
    the government and will only reverse where, based on the direct and
    circumstantial evidence presented and all reasonable inferences and credibility
    determinations drawn therefrom, no reasonable jury could find the defendant
    guilty beyond a reasonable doubt. United States v. Small, 
    423 F.3d 1164
    , 1182
    (10th Cir. 2005); United States v. Pedraza, 
    27 F.3d 1515
    , 1524 (10th Cir. 1994).
    To demonstrate conspiracy, the government must prove “(1) agreement
    with another person to violate the law; (2) knowledge of the essential objectives
    of the conspiracy; (3) knowing and voluntary involvement; and
    (4) interdependence among the alleged co-conspirators.” United States v.
    7
    (...continued)
    discretion of the trial court and its decision will not ordinarily be reversed in the
    absence of a strong showing of prejudice.” Hayes, 
    861 F.2d at 1231
     (internal
    quotations omitted). Particularly “in a conspiracy trial it is preferred that persons
    charged together be tried together.” United States v. Ray, 
    370 F.3d 1039
    , 1045
    (10th Cir. 2004). Consequently, “[t]he defendant’s burden to show an abuse of
    discretion is a difficult one.” Hayes, 
    861 F.2d at 1231
    .
    -16-
    Johnson, 
    12 F.3d 1540
    , 1545 (10th Cir. 1993). The charges were based on
    nineteen tax returns, including three filed in Pursley’s name, two filed in
    W ardell’s name, and one filed in the name of Cimmaron Farms, the ostensible
    employer of Pursley (at least, according to his tax returns). The remaining
    thirteen returns were filed in the names of nine inmates imprisoned at the same
    jail as Pursley and W ardell. Pursley contends, although acknowledging the
    existence of evidence that he had participated in some of the acts included in the
    conspiracy, the government nevertheless did not prove he “participated in the
    broad, single conspiracy charged in the indictment.” Aplt. Br. at 8. Instead, he
    argues the government established his connection to W ardell but failed to
    establish any connection with the remaining inmates. Thus, he concludes he
    cannot be convicted for a conspiracy that includes the filing of all nineteen tax
    returns.
    Pursley’s argument appears to be based on one of two premises, both of
    which are false. One possibility is that Pursley is assuming all individuals whose
    names were listed on the false tax returns were co-conspirators. Accordingly,
    because the evidence at trial tended to show Pursley’s association with W ardell
    but not with the nine inmates listed on the remaining tax returns, he could be
    arguing the government failed to prove his interdependence with those nine
    individuals. Nevertheless, only Pursley and W ardell were charged with
    conspiracy. The flaw here is that the government did not allege a broader
    -17-
    conspiracy involving additional co-conspirators. It only charged Pursley and
    W ardell with conspiring to file numerous false returns involving other inmates.
    Alternatively, Pursley’s argument could be that direct evidence showing a
    connection between himself and each of the nine inmates listed on the tax returns
    was necessary for a conviction. He could be contending that such a showing is
    required for a reasonable jury to believe his involvement in the preparation of the
    first six tax returns (for which he concedes evidence exists) extended to the
    preparation of the remaining thirteen tax returns. Such an argument is wrong. It
    is well established that the government need not prove its case by direct evidence
    alone. See, e.g., United States v. Young, 
    954 F.2d 614
    , 618 (10th Cir. 1992)
    (“Because criminal conspiracies by their nature are generally secret, often
    carefully concealed and may even be unarticulated, conspiracy may be found
    based solely upon circumstantial evidence.”).
    Here, the government presented direct evidence of his participation in the
    preparation of some of the false tax returns (e.g., arrival of funds in his bank
    account) and circumstantial evidence of his participation in the preparation of the
    remaining false tax returns. The fact that some evidence was circumstantial does
    not bar a reasonable jury from convicting him as to the conspiracy alleged in the
    indictment. Nor would it be necessary to prove he performed overt acts in
    furtherance of each aspect of the conspiracy so long as the government
    sufficiently proved that he conspired with W ardell in the tax fraud scheme and at
    least one of them engaged in one overt act. See United States v. Dago, 441 F.3d
    -18-
    1238, 1242 n.1 (10th Cir. 2006) (finding that the overt act requirement of 
    18 U.S.C. § 371
     is satisfied by “any act to effect the object of the conspiracy”).
    W e, accordingly, hold that a reasonable jury could have found Pursley
    guilty of conspiracy beyond a reasonable doubt.
    (2) Jury Instructions. Pursley also argues the district court erred in failing
    to provide proper jury instructions on conspiracy. He contends the instructions
    were confusing because they failed to distinguish between the portion of the
    charged conspiracy upon which the government had direct evidence (preparation
    of tax returns listing the names and affiliates of Pursley and W ardell) and the
    remainder of the conspiracy upon which the government had only circumstantial
    evidence (the remaining tax returns listing the names of additional inmates). W e
    perceive no incongruence between the charged and proven conspiracy. Likewise,
    we find no instruction is necessary to parse whether a particular allegation is
    supported by direct or circumstantial evidence.
    In sum, the evidence presented at trial was sufficient to support the jury’s
    conviction, and the jury was properly instructed by the district court.
    D. Double Jeopardy
    Finally, Pursley argues that his sentence is unlawful because the district
    court violated the Double Jeopardy Clause of the Fifth Amendment by imposing
    consecutive sentences on offenses that were proven by identical facts. The
    Constitution provides that no person shall “be subject to the same offense to be
    tw ice put in jeopardy of life or limb.” U.S. C ONST ., amend. V. Pursley contends
    -19-
    that the same evidence supports his convictions (1) for conspiracy, and (2) for
    aiding and abetting the preparation of false tax returns and, therefore, concludes
    that “there is no practical or substantive distinction” between the two crimes in
    this case. Aplt. Br. at 26–27.
    At the outset, we note that this issue was not raised below. Because this
    question was not presented to the district court, we apply a plain error standard of
    review. United States v. Battle, 
    289 F.3d 661
    , 665 (10th Cir. 2002). Plain error
    “occurs when there is (1) error, (2) that is plain, which (3) affects substantial
    rights, and which (4) seriously affects the fairness, integrity, or public reputation
    of judicial proceedings.” United States v. Lopez-Flores, 
    444 F.3d 1218
    , 1222
    (10th Cir. 2006).
    Pursley’s argument fails the first step because the district court comm itted
    no error. In reviewing a double jeopardy claim, the case law is clear, “[W ]here
    the same act or transaction constitutes a violation of two distinct statutory
    provisions, the test to be applied [for double jeopardy purposes] is whether each
    provision requires proof of an additional fact which the other does not.”
    Blockburger v. United States, 
    284 U.S. 299
    , 304 (1932); United States v. M alone,
    
    222 F.3d 1286
    , 1293 (10th Cir. 2000). W hen each offense requires proof of a fact
    not essential to the other, the charges are not identical and the accused can be
    charged, tried and convicted of both offenses even though the charges arise out of
    the same acts. Goldsmith v. Cheney, 
    447 F.2d 624
    , 627 (10th Cir. 1971).
    -20-
    Consequently, we look to the elements of the two crimes for which Pursley was
    convicted to determine whether a double jeopardy violation exists.
    Conspiracy and aiding and abetting a crime are different criminal acts.
    Goldsm ith, 
    447 F.2d at 628
     (finding no double jeopardy violation after
    prosecutions for both offenses). It is “well settled that commission of a
    substantive offense and a conspiracy to commit it are separate crimes because the
    essence of a conspiracy charge is an agreement to commit a substantive offense.”
    United States v. Johnson, 
    977 F.2d 1360
    , 1371 (10th Cir. 1992) (internal
    quotations omitted). Pursley was charged with conspiracy to commit tax fraud
    which requires “a conspiracy, agreement, or understanding to violate the law. . .
    by two or more persons[.]” Instruction No. 19, vol. I, doc. 676. Thus, the crime
    of conspiracy is completed when an agreement has been made and an overt act to
    further the unlawful design has been performed. Goldsm ith, 
    447 F.2d at 628
    .
    The substantive offense of aiding and abetting, in contrast, requires no agreement
    to comm it the unlawful act. “The epitome of an accessory charge is to aid,
    counsel, or assist another in the commission of a criminal act; it does not depend
    upon an agreement or conspiracy to perform that act.” 
    Id.
    Pursley nonetheless contends that a conviction for aiding and abetting in
    this case necessarily requires an agreement. That contention is incorrect. The
    elements of aiding and abetting require that Pursley “aided in, assisted in,
    procured, counseled, or advised” in the filing of tax returns; that the return falsely
    stated material information; and that Pursley knew of the falsity and acted
    -21-
    willfully. See Instruction No. 31, vol. I, doc. 676. 8 None of these elements
    demand proof that he entered into a knowing agreement with others to comm it the
    crime. In this case, the jury was instructed that, “It is not necessary that the
    government prove that the falsity or fraud [involving the tax return] was with the
    knowledge or consent of the person authorized or required to present such
    return.” 
    Id.
     This is consistent with our case law stating that an agreement is not
    an element of the crime of aiding and abetting. See, e.g., Pereira v. United
    States, 
    347 U.S. 1
    , 11 (1954) (“Aiding, abetting and counseling are not terms
    which presuppose the existence of an agreement.”); Goldsm ith, 
    447 F.2d at 628
    .
    W hile Pursley and W ardell may have acted in concert in comm itting tax fraud, the
    8
    The entire jury instruction read,
    In order to sustain its burden of proof for the crime of aiding and abetting
    the preparation or presentation of false tax returns against defendant
    PU RSLEY as charged in Counts 5 and 6 of the indictment, . . . the
    government must prove each and all of the following five (5) essential
    elem ents beyond a reasonable doubt:
    (1) That defendant PU RSLEY aided in, assisted in, procured, counseled,
    or advised the preparation or presentation of a return as described in the
    indictment . . . in connection with any matter arising under the internal
    revenue laws; and
    (2) That this return falsely stated information as described in the
    indictment, . . .; and
    (3) That defendant PURSLEY knew that one or more of the statements
    in the return was false; and
    (4) That the false statement was material; and
    (5) That defendant PURSLEY acted willfully.
    It is not necessary that the government prove that the falsity or fraud was
    with the knowledge or consent of the person authorized or required to
    present such return.
    Instruction No. 31, vol. I, doc. 676.
    -22-
    convictions for aiding and abetting do not necessarily require agreement. The
    convictions, therefore, do not run afoul of double jeopardy.
    In sum, even though Pursley’s multiple convictions arose from the same
    criminal course of action, each crime required proof of a fact not required to
    convict for the other crime. Accordingly, we find no error in the district court’s
    order of consecutive sentences for the different crimes.
    IV. Conclusion
    For the foregoing reasons, Pursley’s convictions and sentences are
    A FFIRME D.
    -23-
    

Document Info

Docket Number: 05-1428

Filed Date: 1/11/2007

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (19)

United States v. Kelley , 300 F. Supp. 2d 224 ( 2003 )

united-states-v-robert-d-scott-edward-t-skinner-alex-yung-steven-j , 37 F.3d 1564 ( 1994 )

United States v. Robert Thomas Johnson, Richard Lee ... , 12 F.3d 1540 ( 1993 )

United States v. Lawrence Duane Young , 954 F.2d 614 ( 1992 )

United States v. Alphonso Pedraza, United States of America ... , 27 F.3d 1515 ( 1994 )

united-states-v-burl-allen-peveto-jr-united-states-of-america-v-melvin , 881 F.2d 844 ( 1989 )

David Martin Goldsmith v. Lawrence Cheney, Sheriff of Teton ... , 447 F.2d 624 ( 1971 )

United States v. Walter H. McClure and Anthony Tafoya , 734 F.2d 484 ( 1984 )

United States v. William L. Hayes , 861 F.2d 1225 ( 1988 )

united-states-v-willie-james-small-alvin-green-aka-mel-dog-theolian , 423 F.3d 1164 ( 2005 )

United States v. Battle , 289 F.3d 661 ( 2002 )

United States v. Lopez-Flores , 444 F.3d 1218 ( 2006 )

Pereira v. United States , 74 S. Ct. 358 ( 1954 )

United States v. Mauro , 98 S. Ct. 1834 ( 1978 )

Edgar J. Greathouse v. United States , 655 F.2d 1032 ( 1981 )

United States v. Malone , 222 F.3d 1286 ( 2000 )

United States v. Theodore Linn, United States of America v. ... , 31 F.3d 987 ( 1994 )

United States v. Loren Robbie Wilson , 719 F.2d 1491 ( 1983 )

united-states-v-clay-dalton-johnson-jerry-duane-spears-harold-onee , 977 F.2d 1360 ( 1992 )

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