United States v. Edgar Foxx , 681 F. App'x 249 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4355
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDGAR EUGENE FOXX,
Defendant - Appellant.
No. 16-4371
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CONTINA RENA FOXX,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, Senior
District Judge. (6:14-cr-00013-NKM-1; 6:14-cr-00013-NKM-2)
Submitted: February 17, 2017 Decided March 14, 2017
Before KEENAN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Dana R. Cormier, DANA R. CORMIER, P.L.C., Staunton, Virginia; Fay
F. Spence, First Assistant Federal Public Defender, Roanoke,
Virginia, for Appellants. Caroline D. Ciraolo, Principal Deputy
Assistant Attorney General, S. Robert Lyons, Chief, Criminal
Appeals & Tax Enforcement Policy Section, Gregory Victor Davis,
Katie Bagley, Tax Division, DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Following a jury trial, Edgar Foxx was convicted of making a
false statement on a tax return, three counts of failure to file
a tax return, and theft of government property. The district court
sentenced him to 41 months’ imprisonment. Contina Foxx, his wife,
was convicted of theft of government property and making a false
statement in connection with an application for federal health
care benefits. The district court sentenced her to 30 months’
imprisonment. On appeal, they contend that the district court
erred by denying Edgar’s motion for government funds to hire a
forensic accountant and denying Contina’s motion in limine in which
she sought to exclude evidence of her prior convictions. They
also argue that the district court erred in determining the amount
of tax loss attributable to them at sentencing. We affirm.
The district court is authorized to provide funds for a
defendant to hire an expert upon “a preliminary showing” that such
services are necessary to an adequate defense. 18 U.S.C.
§ 3006A(e)(1) (2012). This court reviews for an abuse of
discretion the denial of expert services, United States v.
Hartsell, 127 F.3d 343, 349 (4th Cir. 1997), and any error in the
determination is reversible only upon a showing that the denial of
expert services was prejudicial to the defense. United States v.
Perrera, 842 F.2d 73, 77 (4th Cir. 1988). We have reviewed the
Foxxes’ arguments in support of the provision of funds and conclude
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that the district court did not abuse its discretion in denying
the request for funds. Notably, deduction and expense amounts
were not relevant to the determination of the Foxxes’ culpability
on the charged offenses, and they failed to demonstrate any
prejudice. See 26 U.S.C. § 6012 (2012); see also Hartsell, 127
F.3d at 349.
To the extent that the Foxxes assert that a forensic
accountant could have assisted in determining the amount of loss
and restitution for sentencing purposes, we note that the Foxxes
did not renew their request for funds post-conviction, despite the
district court expressly stating that it would be willing to
reconsider its ruling after the Foxxes received the discovery
materials from the Government.
Next, Contina challenges the district court’s denial of her
motion in limine in which she sought to exclude, on cross-
examination, evidence of her prior convictions of seven counts of
false statement in connection with obtaining welfare assistance.
See Va. Code Ann. § 63.2-502 (2007) (“Any person who knowingly
makes any false application for public assistance . . . shall be
guilty of perjury.”). She argues that the prejudicial impact of
the evidence outweighed its probative value. However, as the
district court correctly concluded, where a prior conviction
involves an act of dishonesty, Fed. R. Evid. 609(a)(2) does not
provide for a weighing of the prejudicial effect versus the
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probative value of the evidence, but rather evidence of these
crimes is automatically admissible. United States v. Harper, 527
F.3d 396, 408 (5th Cir. 2008) (“Crimes qualifying for admission
under Rule 609(a)(2) are not subject to Rule 403 balancing and
must be admitted.”). In fact, the district court “has no
discretion to exclude evidence that qualifies” for admission under
Rule 609(a)(2). United States v. Kelly, 510 F.3d 433, 438 (4th
Cir. 2007) (citing United States v. Cunningham, 638 F.2d 696, 698
(4th Cir. 1981)). Accordingly, we affirm the district court’s
determination that evidence of Contina’s prior convictions was
admissible without consideration of prejudicial effect.
Lastly, the Foxxes argue that the district court erred by not
taking into account their evidence presented at sentencing as to
the actual amount of taxes they would have owed had they filed tax
returns, but rather using an estimation of tax loss provided by
the Sentencing Guidelines. During the sentencing hearing, the
Foxxes presented the testimony of Melissa Wilson, who, in
preparation for the sentencing hearing, had prepared income tax
returns for the Foxxes for the years 2008 through 2011. She
calculated the Foxxes’ total tax liability for those years to be
$35,748.
A special agent with the Internal Revenue Service testified
that he computed the Foxxes’ gross income by reference to the
records of receipts from various scrap metal companies. He
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determined that the Foxxes’ tax liability was $172,000 by applying
the formula in the Sentencing Guidelines, which provides that, in
the absence of adequate records, tax loss can be determined as 20
percent of gross income. See U.S. Sentencing Guidelines Manual
§ 2T1.1(c)(2)(Note (A)) (2015). The court expressly found
Wilson’s testimony incredible and adopted the tax loss estimate
provided by the Guidelines.
When reviewing the district court’s application of the
Sentencing Guidelines, this court reviews legal conclusions de
novo and factual determinations for clear error. United States v.
Manigan, 592 F.3d 621, 626 (4th Cir. 2010). Credibility
determinations are afforded “great deference.” United States v.
Layton, 564 F.3d 330, 334 (4th Cir. 2009). The court’s
determination of the amount of loss for sentencing purposes is a
factual finding, which this court reviews for clear error. United
States v. Mehta, 594 F.3d 277, 281 (4th Cir. 2010).
The tax loss due to the failure to file a tax return is “the
amount of tax that the taxpayer owed and did not pay.” USSG
§ 2T1.1(c)(2). Tax loss “shall be treated as equal to 20% of the
gross income . . . unless a more accurate determination of the tax
loss can be made.” USSG § 2T1.1(c)(2)(Note (A)).
The Foxxes contend that Wilson’s testimony and her revised
tax returns provided more accurate information as to their tax
loss. However, Wilson admitted that her computations were based
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on a number of assumptions and that the returns she prepared “at
best, were just a guesstimate.”
While the district court is instructed to reasonably estimate
the tax loss and to account for any unclaimed deduction, credit or
exemption, the defendant has the burden of establishing his
eligibility for the deduction, exemption or credit by a
preponderance of the evidence, and “the credit, deduction, or
exemption [must be] reasonably and practically ascertainable.”
USSG 2T1.1, comment. (n.3). Also, the district court is not
required to accept calculations of tax loss that it finds to be of
“doubtful reliability.” United States v. Montgomery, 747 F.3d
303, 313-14 (5th Cir. 2014); see United States v. Collins, 685
F.3d 651, 659 (7th Cir. 2012).
We have reviewed the record and have determined that the
district court did not clearly err in determining that Edgar’s
business expenses were not “reasonably and practically
ascertainable” USSG § 2T1.1, comment. (n.3), and in therefore
estimating the tax loss as 20 percent of gross income. See United
States v. Psihos, 683 F.3d 777, 783 (7th Cir. 2012) (holding that
district court permitted to reject evidence as to unclaimed
deductions where taxpayer provided no documentation). Further, we
conclude that the calculation of the amount of tax loss was not
clearly erroneous.
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Accordingly, we affirm the district court’s judgments. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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