Francis Tucker v. United States ( 2012 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 12-1571
    FRANCIS CLIFFORD TUCKER,
    Plaintiff - Appellant,
    v.
    UNITED STATES OF AMERICA,
    Defendant - Appellee.
    Appeal from the United States District Court for the Northern
    District of West Virginia, at Wheeling.     Frederick P. Stamp,
    Jr., Senior District Judge. (5:08-cv-00105-FPS-JES)
    Submitted:   October 16, 2012            Decided:     December 5, 2012
    Before DIAZ and    FLOYD,   Circuit   Judges,   and   HAMILTON,   Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    Paul J. Harris, Wheeling, West Virginia, for Appellant. Kathryn
    Keneally, Assistant Attorney General, Jonathan S. Cohen, Karen
    G. Gregory, Tax Division, UNITED STATES DEPARTMENT OF JUSTICE,
    Washington, D.C.; William J. Ihlenfeld, II, United States
    Attorney, Wheeling, West Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    In this civil action by federal taxpayer Francis C. Tucker
    (Tucker) against the United States of America (the government)
    for the alleged wrongful disclosures of his federal income tax
    return information to third parties, the district court entered
    final     judgment      in   favor    of    the     government.          Tucker    noted    a
    timely appeal and challenges the judgment on various grounds.
    We affirm.
    I.
    Pursuant         to    
    26 U.S.C. § 6103
    (a),      federal     tax    return
    information          generally       must    be      kept     confidential         by   the
    government.          “Return information” includes:
    a taxpayer’s identity, the nature, source, or amount
    of   his   income,  payments,   receipts,   deductions,
    exemptions, credits, assets, liabilities, net worth,
    tax     liability,    tax    withheld,    deficiencies,
    overassessments,   or    tax  payments,   whether   the
    taxpayer’s return was, is being, or will be examined
    or subject to other investigation or processing
    . . . .
    
    Id.
       §    6103(b)(2)(A).            Pursuant       to    §   7431(a)(1),      a   federal
    taxpayer        is   authorized      to    bring    a    civil     action    against    the
    government “[i]f any officer or employee of the United States
    knowingly, or by reason of negligence, inspects or discloses any
    return     or    return      information      with       respect    to   a   taxpayer      in
    violation of any provision of section 6103 . . . .”                          Id.
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    Tucker’s complaint alleged that two special agents of the
    United    States       Internal       Revenue          Service      (the    IRS),       who    were
    assisting in a federal grand jury investigation of his income
    tax     liabilities          for     tax        years     2002       through          2007,    made
    unauthorized          disclosures          of    his     return       information         to    six
    individuals          while    interviewing          them       in    connection         with    the
    investigation.          With one exception, the allegations in Tucker’s
    complaint were adjudicated pursuant to a one-day bench trial.
    In the district court’s scheduling order filed on August
    23,    2010,    the     district       court      set     November         22,   2010     as    the
    deadline       for    the     parties      to    file     any       motions      to    amend    the
    pleadings.       Tucker did not move to amend his complaint prior to
    this    deadline.            The   pretrial       order    filed       on     April     11,    2011
    listed Tucker’s theories of liability as follows:                                     (1) Special
    Agent    Brad    Nickerson          (Agent      Nickerson)          disclosed     to     Tucker’s
    former wife Cathy West “that [Tucker] was going to jail, that he
    was evading his income tax and they were going to prove it,”
    (J.A. 153); (2) Agent Nickerson and Special Agent Ryan Korner
    (Agent Korner) disclosed to Tucker’s brother Tommy Tucker “that
    [Tucker] was going to jail and they had him for tax evasion,”
    (J.A. 154); (3) Agent Nickerson disclosed to Tucker’s friend
    Gregory George that “[Tucker] was [being investigated] for tax
    evasion” and          stated       three    times       that    “[Tucker]        was    going    to
    jail,” id.; (4) Agent Nickerson disclosed to Tucker’s former
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    brother-in-law            Thomas       West,          Jr.    “that        [Tucker]        was    being
    investigated for tax evasion and [Tucker] was going to go to
    jail,” id.; (5) Agent Nickerson disclosed to Tucker’s then wife
    Donetta LaRue “that [Tucker] was probably going to go to jail,”
    id.;    and    (6)        either       Agent       Nickerson         or     Agent      Korner     told
    Tucker’s son Gary Tucker that “he didn’t see any reason why he
    should go up the river for something somebody else did,” id.
    Prior to trial, the district court granted summary judgment in
    favor of the government with respect to the alleged “up the
    river” comment on the basis that such comment, even if made, did
    not constitute a disclosure of Tucker’s return information.
    The    case        proceeded         to    a     bench      trial     on     the    remaining
    allegations.              As    witnesses         for    the       plaintiff,       Tucker       called
    Agents Nickerson and Korner, Tommy Tucker, Cathy West, Thomas
    West, Donetta LaRue, and Gregory George.                                  Tucker also took the
    stand.        As    witnesses         for    the       defense,       the    government          called
    Agents Nickerson and Korner.
    During their respective testimonies, Agents Nickerson and
    Korner denied making the disclosures alleged in the complaint,
    denied       they       heard        each    other          make     such       disclosures,        and
    explained          that        the    IRS        trained       them       not     to      make     such
    disclosures.                  Additionally,            Agent        Korner        testified       that
    disclosure         to     a     third-party           witness       that     Tucker       was    under
    investigation for tax evasion would have been unhelpful because,
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    “if anything, it would probably cause the third-party witness to
    shut down or clam up . . . .”                  (J.A. 305).
    Tommy Tucker testified that during one of three interviews
    of him conducted by Agents Nickerson and Korner, one of these
    agents     (he    could    not     remember         which   one)      told    him     that    his
    brother Tucker was going to jail for tax evasion.                                   Cathy West
    testified that when Agents Nickerson and Korner interviewed her,
    “they more than indicated that . . . they wanted to [put Tucker
    in jail] and that they were investigating him for income tax
    evasion,” although she could not remember their exact words.
    (J.A. 337).           The end result of Thomas West’s testimony was that,
    as    of   the    date    of    trial,        he   could    not    state      whether    Agent
    Nickerson        or    Korner     informed         him    during      the    interview       that
    Tucker was going to jail.                 On the witness stand, Donetta LaRue
    could not recall the exact words the agents used, but she did
    not think they used the word jail.                          Rather, “[she] recall[ed]
    getting     the       impression       from    them      that   [Tucker]      was     going   to
    serve some time.”             (J.A. 355).          Gregory George testified that at
    the start of his interview by Agents Nickerson and Korner “[he]
    asked them what it was referring to,” and “[the agents] said,
    ‘We   [a]re      here    to     talk    about      putting      Mr.    Tucker    in    jail.’”
    (J.A. 367).
    Based upon the district court’s review of the evidence and
    resolution        of    factual    disputes         created     thereby,       the    district
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    court concluded that Tucker failed to prove by a preponderance
    of the evidence that either Agent Nickerson or Agent Korner made
    any   statements         during    the     interviews          to    the     third-party
    witnesses     that    Tucker      was    going    to     jail,      Tucker      was    being
    investigated for income tax evasion, or any similar statements.
    Accordingly, the district court found in favor of the government
    with respect to Tucker’s allegations tried before the court.
    II.
    On    appeal,   Tucker      contends       the    district      court      erred    by
    entering judgment in favor of the government with respect to his
    allegations of wrongful disclosure of return information under
    § 7431(a)(1), which the district court resolved pursuant to a
    bench trial.      Tucker’s contention is without merit.
    We review a judgment following a bench trial under a mixed
    standard    of    review;    findings      of    fact    are     reviewed       for    clear
    error and conclusions of law are reviewed de novo.                                Roanoke
    Cement Co. v. Falk Corp., 
    413 F.3d 431
    , 433 (4th Cir. 2005).
    The   law    is   well    established      that        “[a]    finding     is    ‘clearly
    erroneous’ when although there is evidence to support it, the
    reviewing court on the entire evidence is left with the definite
    and firm conviction that a mistake has been committed.”                               United
    States v. U.S. Gypsum Co., 
    333 U.S. 364
    , 395 (1948).                            Moreover,
    “when a district court’s factual finding in a bench trial is
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    based upon assessments of witness credibility, such finding is
    deserving        of    the     highest      degree         of   appellate       deference.”
    Evergreen Int’l, S.A. v. Norfolk Dredging Co., 
    531 F.3d 302
    , 308
    (4th Cir. 2008) (internal quotation marks omitted).
    Having reviewed the parties’ briefs and the record before
    us,   we   perceive       no    basis      on    which     to   overturn      the   district
    court’s    judgment          with    respect         to   Tucker’s    allegations      tried
    pursuant to a bench trial.                      In this regard, we defer to the
    district court’s findings of fact——premised in large part on
    witness    credibility         determinations——that              Agents      Nickerson     and
    Korner     did    not    disclose         return       information     with     respect    to
    Tucker      in        violation       of        § 6103(a)       as     Tucker       alleged.
    Accordingly, we affirm the judgment with respect to Tucker’s
    allegations of wrongful disclosure of return information under
    § 7431(a)(1), which the district court resolved pursuant to a
    bench trial.
    III.
    Tucker      contends          the    district        court     erred    by    granting
    summary judgment in favor of the government with respect to his
    allegation that Agent Korner told his son Gary Tucker that “he
    didn’t     see    any    reason       why       he    should    go   up   the      river   for
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    something somebody else did.” *               (J.A. 154).       According to Tucker,
    the       statement         constituted          return          information         under
    § 6103(b)(2)(A),       and    thus       is   actionable        under   §     7431(a)(1).
    Tucker’s contention is without merit.
    We review the grant of summary judgment de novo, viewing
    the evidence in the light most favorable to the nonmoving party.
    PBM Prods., LLC v. Mead Johnson & Co., 
    639 F.3d 111
    , 119 (4th
    Cir. 2011).     Summary judgment is appropriate only if there is no
    genuine    dispute    as     to    any    material       fact    and    the      movant   is
    entitled to judgment as a matter of law.                   
    Id.
    We agree with the district court that the alleged “up the
    river”    comment     did    not    constitute       a    disclosure        of    Tucker’s
    return information as defined in § 6103(b)(2)(A), and therefore,
    is not actionable under § 7431(a)(1).                      Accordingly, we affirm
    the judgment in favor of the government with respect to this
    statement.
    *
    Although there is confusion in the record below as to
    whether Tucker alleged Agent Nickerson or Agent Korner made the
    “up the river” comment to Gary Tucker, on appeal, Tucker
    identifies Agent Korner as such agent.      Under the district
    court’s reasoning in granting summary judgment, the identity of
    the agent is irrelevant.
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    IV.
    Tucker next contends the district court erred in excluding
    evidence from being presented at trial to prove that when Agents
    Nickerson   and    Korner      introduced       themselves    to   certain     third
    party interviewees, sixteen in all, the agents stated that they
    were   assisting    the   United        States    Attorney    in   a   grand    jury
    investigation of Tucker.          Five of these third parties testified
    at trial, while the remaining eleven were listed in the pretrial
    order as individuals Tucker “may call to testify at trial if the
    need arises . . . .”           (J.A. 141) (emphasis omitted).           According
    to Tucker, had such evidence been admitted, he would have been
    entitled to amend his complaint to conform to such evidence, and
    thus, the district court erred when it denied his motion to this
    effect.    Tucker’s contentions are without merit.
    A district court is afforded wide discretion in determining
    the admissibility of evidence at trial, United States v. Abel,
    
    469 U.S. 45
    , 54 (1984), and “the district court’s evidentiary
    determinations should not be overturned except under the most
    extraordinary of circumstances,” United States v. Aramony, 
    88 F.3d 1369
    ,    1377    (4th     Cir.    1996)    (internal    quotation       marks
    omitted).      Therefore, we review a district court’s exclusion of
    evidence    proffered     at    trial    under    the   deferential      abuse    of
    discretion standard.           Westberry v. Gislaved Gummi AB, 
    178 F.3d 257
    , 261 (4th Cir. 1999).           Moreover, whether or not a plaintiff
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    should   be       allowed    to   amend   his   complaint      to    conform       to   the
    evidence admitted at trial is a discretionary determination to
    be   made    by    the     district   court,       which   determination          we    also
    review      for    abuse     of   discretion.         Quillen       v.    International
    Playtex, Inc., 
    789 F.2d 1041
     (4th Cir. 1986).
    As explained in its “Findings of Fact and Conclusions of
    Law,” filed March 29, 2012, the district court excluded Tucker’s
    proffered         evidence     regarding       the    manner    in        which    Agents
    Nickerson     and     Korner      introduced    themselves      on       the   ground    of
    untimeliness.         In this regard, the district court specifically
    explained:
    During the bench trial, plaintiff attempted to
    submit evidence relating to certain issues, that is
    the IRS agents’ introduction of themselves to certain
    third-party witnesses which plaintiff asserted was in
    violation of 
    26 U.S.C. § 6103
    , namely that persons
    interviewed were told by the agents by way of
    introduction that Francis Tucker was under a grand
    jury investigation.    The defendant objected to this
    testimony as being untimely.     This Court decided to
    hear this testimony and then decide at a later date
    whether it should be considered as evidence in this
    civil action. This Court now finds that this evidence
    is untimely as those claims were never made in the
    complaint and the plaintiff never sought to amend his
    complaint to include these allegations. Moreover, the
    plaintiff   never   supplemented    any  responses  to
    discovery requests by the defendant to include this
    information and these matters were never addressed at
    the pretrial conference or in the joint pretrial
    order.
    Accordingly,   this evidence must  be   deemed
    untimely and will not be considered or admitted as
    evidence in this case.
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    (J.A. 771-72).
    As explained in its memorandum opinion and order denying
    Tucker’s motion for leave to amend his complaint to conform to
    the evidence admitted at trial, the district court denied the
    motion   on   the   ground   that   the   government   would   be   unfairly
    prejudiced if the motion were granted “since the United States
    was   effectively      precluded     from    conducting   any       discovery
    regarding these allegations under the existing scheduling order
    which provided for discovery prior to trial.”              (J.A. 752-53).
    In this regard, the district court specifically explained:
    As previously noted by the Court in its ruling
    not permitting this evidence to be presented at trial,
    plaintiff Tucker did not make these allegations
    concerning   the   manner   of   introduction   in  the
    complaint, did not seek to amend the complaint, did
    not set forth these allegations in response to
    discovery, and did not include these matters at any
    pretrial conference or in the joint pretrial order.
    Not only is this information untimely, but the
    inclusion of this information at this point in the
    case would be unfairly prejudicial to the United
    States.   As is noted by the United States, there are
    exceptions to the rules prohibiting improper return
    disclosures and the United States did not have an
    opportunity to adequately address those exceptions
    even though the United States did present some
    evidence at trial to demonstrate that it had met the
    requirements    of    §   6103(k)(6)    allowing   such
    disclosures.   The United States submits that had it
    been aware of these allegations prior to trial, it
    could have conducted additional discovery on this
    issue in order to present trial testimony defending
    the assertions of plaintiff Tucker, including the
    presentation of evidence regarding a good faith
    defense under 
    26 U.S.C. § 7431
    (b)(1).
    (J.A. 751-52).
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    We     find   no   abuse   of   discretion      in    the    district      court’s
    decision to exclude Tucker’s proffered evidence regarding the
    manner in which Agents Nickerson and Korner sought to introduce
    themselves to certain third-party witnesses.                         A fortiori, we
    find no abuse of discretion in the district court’s denial of
    Tucker’s motion to amend his complaint to conform it to such
    evidence.
    V.
    Having found no error in the proceedings below as contended
    by Tucker, we affirm the judgment in favor of the government in
    toto.      We dispense with oral argument because the facts and
    legal    contentions    are    adequately     presented         in    the    materials
    before   the   court    and    argument     would   not    aid       the    decisional
    process.
    AFFIRMED
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