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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13033
Non-Argument Calendar
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D.C. Docket No. 6:19-cr-00173-PGB-EJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNIS J. NAGLE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 27, 2021)
Before GRANT, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
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Dennis Nagle appeals his conviction and sentence for corruptly endeavoring
to obstruct and impede the administration of the internal revenue laws of the
United States. We find no reversible error and therefore affirm.
I.
For more than a decade, Dennis Nagle used several different tactics to avoid
paying taxes and to obstruct and delay the IRS in its efforts to collect the taxes he
owed. At various times, he failed to report income or to file a tax return; hid assets
in a sham limited liability company; repeatedly sent correspondence to the IRS
making baseless arguments about why he supposedly did not have to pay taxes;
made in-person statements to IRS agents falsely promising to comply with tax laws
going forward; completed W-4 forms falsely claiming that he was exempt from tax
withholding; altered or deleted the verification of accuracy on his tax return forms;
sent the IRS numerous bad checks written on a closed bank account, a “bill of
exchange,” promissory notes, and other forms of payment that, while worthless,
automatically triggered a release of liens and delayed collections; used a mailbox
store address and mail forwarding to conceal his home address; and refused to
provide his home address when asked. On at least two occasions, he intercepted
correspondence from the IRS to his employer, and he sent responses on behalf of
the company (without his employer’s knowledge) refusing to withhold
employment taxes and stating that the company would not comply with an IRS
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levy on Nagle’s employment income. Nagle also wrote to a former employer
demanding that it not comply with an IRS levy on his pension, falsely stating that
the levies were invalid and that another employer agreed with his position and was
refusing to cooperate, or (on another occasion) that he had paid his taxes and the
levies had been released. And he threatened to sue or did sue various entities for
complying with IRS levies and threatened to file criminal charges against his
former employer and an IRS revenue officer.
Nagle was charged in a one-count indictment with obstructing and impeding
the due administration of the internal revenue laws, in violation of
26 U.S.C.
§ 7212(a). Nagle proceeded to trial, and a jury found him guilty as charged. The
district court sentenced him to three years in prison followed by one year of
supervised release. This is Nagle’s appeal.
II.
Nagle argues that his conviction should be vacated because of prosecutor
misconduct. Such allegations present mixed questions of fact and law that we
review de novo. United States v. Eckhardt,
466 F.3d 938, 947 (11th Cir. 2006).
He also argues that the district court erred in calculating his Sentencing Guidelines
sentencing range by using a guideline applicable to tax evasion to calculate his
base offense level and by applying an enhancement for the use of “sophisticated
means” in the commission or concealment of the offense. We review the district
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court’s legal interpretation of the Guidelines de novo. United States v. Feaster,
798 F.3d 1374, 1380 (11th Cir. 2015). We review the court’s relevant factual
findings—including the finding that the defendant used sophisticated means—for
clear error.
Id.
A.
First, we address Nagle’s challenge to his conviction, which is based on his
argument that statements made by the prosecutor in his closing rebuttal argument
rose to the level of prosecutorial misconduct. Specifically, Nagle argues that the
prosecutor wrongly represented to the jury that it could find him guilty as charged
based on “corrupt acts” that were not specifically alleged in the indictment. Nagle
contends that this argument was contrary to the jury instructions that the parties
had previously agreed to and implied to the jury that it should disregard the
instructions given by the court.
We will not vacate a defendant’s conviction and grant a new trial based on
prosecutorial misconduct unless we conclude not only that the prosecutor’s
remarks were improper, but also that they prejudicially affected the defendant’s
substantial rights. United States v. Leonard,
4 F.4th 1134, 1148 (11th Cir. 2021).
“The defendant’s substantial rights are prejudicially affected when a reasonable
probability arises that, but for the comments, the outcome of the trial would have
been different.” United States v. Rivera,
780 F.3d 1084, 1096 (11th Cir. 2015).
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Here, even assuming for the sake of argument that the prosecutor’s
comments were improper, a new trial is not warranted because there is no
reasonable probability that the outcome of the trial would have been different if the
prosecutor had not made the comments. First, the evidence that Nagle committed
at least one of the “corrupt acts” listed in the indictment—including Nagle’s own
testimony admitting to much of the conduct alleged—was overwhelming. And
second, even if the prosecutor’s comments could be understood as an argument
that the jury should disregard the court’s instructions, as Nagle argues, the court
cured any potential for misunderstanding by giving the jury its instructions
immediately afterward, including an instruction that “You must follow the law as I
explain it, even if you do not agree with the law, and you must follow all of my
instructions as a whole. You must not single out or disregard any of the Court’s
instructions on the law.” Because the prosecutor’s comments did not prejudicially
affect Nagle’s substantial rights, we reject his argument that his conviction should
be vacated.
B.
Nagle also challenges the district court’s calculation of his Sentencing
Guidelines sentencing range. He argues that the district court erred by using
§ 2T1.1 of the Guidelines to determine his base offense level. We do not agree.
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The Statutory Index appended to the Sentencing Guidelines manual specifies
the offense guideline section in Chapter Two that applies for the statute of
conviction. The Index provides that either § 2J1.2 (for obstruction of justice) or
§ 2T1.1 (for tax evasion and similar conduct) applies for a violation of the
Omnibus Clause of
26 U.S.C. § 7212(a). Nagle argues that the district court
should have used § 2J1.2 because he was “charged with and convicted of
endeavoring to ‘obstruct and impede the due administration of the internal revenue
laws.’”
But the Statutory Index states that if “more than one guideline section is
referenced for the particular statute, use the guideline most appropriate for the
offense conduct charged in the count of which the defendant was convicted.”
U.S.S.G. Statutory Index, App. A (emphasis supplied). The offense conduct
charged in Nagle’s indictment recounts Nagle’s numerous and varied attempts to
avoid paying his taxes by, among other things, failing to file returns or pay taxes
and submitting false or fraudulent documents and statements. The conduct
covered by § 2J1.2, the obstruction-of-justice guideline, is “frequently part of an
effort to avoid punishment for an offense that the defendant has committed or to
assist another person to escape punishment for an offense.” U.S.S.G. § 2J1.2,
background. Section 2T1.1, on the other hand, applies to conduct such as tax
evasion; the willful failure to file returns, supply information, or pay taxes; and
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filing fraudulent or false returns, statements, or other documents. U.S.S.G.
§ 2T1.1. The district court did not err in using § 2T1.1 to calculate Nagle’s base
offense level because the guideline for tax evasion is more appropriate to the
offense conduct charged.
C.
The Sentencing Guidelines provide for a two-level enhancement to the
defendant’s offense level under § 2T1.1 if the offense involved “sophisticated
means.” U.S.S.G. § 2T1.1(b)(2). According to the guideline application notes,
“sophisticated means” refers to “especially complex or especially intricate offense
conduct pertaining to the execution or concealment of an offense,” including
conduct “such as hiding assets or transactions, or both, through the use of fictitious
entities, corporate shells, or offshore financial accounts.” Id., comment. (n.5).
“Although the mere failure to report income to an accountant does not involve
sophisticated means, a defendant need not use offshore bank accounts or
transactions through fictitious entities in order for the enhancement to apply.”
United States v. Clarke,
562 F.3d 1158, 1165 (11th Cir. 2009) (internal citation
omitted). And even if each of the defendant’s actions, taken alone, was not
sophisticated, the enhancement may be applied if the overall scheme was
sophisticated. United States v. Ghertler,
605 F.3d 1256, 1267 (11th Cir. 2010).
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Here, we cannot say that the district court erred in applying the
sophisticated-means enhancement. Nagle developed a long-term strategy for
impeding and delaying the IRS’s attempts to collect on his tax debt while waiting
for portions of the debt to become uncollectable due to the ten-year statute of
limitations. His tactics in implementing his scheme were creative and varied, and
were apparently based on a careful study of tax laws and IRS collection methods.
He created documents meant to look like negotiable instruments in order to trigger
a release of tax liens; hid assets in a sham company; requested a “collection due
process” hearing to “stop the clock” on IRS levies; used his position in his
employer’s company to intercept IRS correspondence, obstruct a levy on his
salary, and attempt to obstruct another levy on his pension benefits; and consulted
with others on additional tactics to defer collections as long as possible. We find
no clear error in the district court’s finding that Nagle’s overall scheme involved
the use of sophisticated means to carry out his offense.
IV.
For the foregoing reasons, we affirm Nagle’s conviction and sentence.
AFFIRMED.
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