United States v. Gena , 258 F. App'x 592 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4144
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS J. GENA, a/k/a Thomas Gena,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:05-cr-00303-CMC)
Submitted: November 30, 2007 Decided: December 17, 2007
Before TRAXLER, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Scott W. Gross, Macomb, Michigan, for Appellant. Reginald I.
Lloyd, United States Attorney, Anne Hunter Young, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas J. Gena was named in a forty-four count indictment
arising out of his operation of a tax return preparation business
called “Tax Doctors,” in Columbia, South Carolina.* The indictment
charged that, between 2000 and 2004, Gena aided and assisted in the
preparation of fraudulent tax returns for the tax years 1999, 2000,
2001, 2002, and 2003. The Government presented evidence
establishing that Gena prepared at least twenty-six tax returns
claiming dependent exemptions and earned income tax credits which
the taxpayer/clients were not entitled to claim. Based on this
evidence, the jury convicted Gena on all twenty remaining counts.
The district court sentenced him to twenty-seven months
imprisonment. Gena noted a timely appeal.
Effective for tax years beginning after December 31,
1999, a “qualifying child,” for purposes of the Earned Income Tax
Credit includes “an eligible foster child of the taxpayer.” 26
U.S.C. § 32(c)(3)(B)(i)(III). An “eligible foster child” means an
individual who “is placed with the taxpayer by an authorized
placement agency” and “the taxpayer cares for as the taxpayer’s own
child.” 26 U.S.C. § 32(c)(3)(B)(iii). Gena argues that the term
“authorized placement agency” is not defined in the relevant
sections of the Internal Revenue Code and, therefore, the statute
*
All but twenty counts were dismissed on motion of the
Government prior to trial.
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is unconstitutionally vague. Our review of the legislative history
of the Ticket to Work and Work Incentives Improvement Act of 1999
reveals that the term “authorized placement agency” means a state
agency or one of its subdivisions or a tax-exempt child placement
agency licensed by the state. We also find that the plain meaning
of the statute would not include within its definition of “eligible
foster child” a taxpayer’s fiancé, boyfriend, girlfriend, roommate,
siblings, parents or grandparents--each of which were claimed as
foster children on the returns prepared by Gena.
Gena also challenges the sufficiency of the evidence to
support his convictions. To obtain a conviction under I.R.C.
§ 7206(2), the government must prove the following elements beyond
a reasonable doubt: “(1) the defendant aided, assisted, or
otherwise caused the preparation and presentation of a return; (2)
that the return was fraudulent or false as to a material matter;
and (3) the act of the defendant was willful.” United States v.
Aramony, 88 F.3d 1369, 1382 (4th Cir. 1996) (internal citation
omitted). We find that the evidence presented by the Government
supported Gena’s convictions. The Government established that Gena
personally prepared at least twenty-six tax returns, each
containing materially false information. Moreover, the evidence
was sufficient to support an inference of willfulness. Gena
personally interviewed his clients and therefore knew, or should
have known, that the individuals he listed as foster children on
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their returns did not qualify as such for purposes of the earned
income credit. Accordingly, we affirm Gena’s conviction. 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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