United States v. Secor ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4066
FRANCEYN SECOR,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4069
WILLIAM J. DOUGHERTY, JR.,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4195
JOHN L. BLANCHARD,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Newport News.
Raymond A. Jackson, District Judge.
(CR-01-47)
Argued: April 4, 2003
Decided: August 11, 2003
Before WILKINS, Chief Judge, and TRAXLER and
GREGORY, Circuit Judges.
2 UNITED STATES v. SECOR
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: David Glenn Barger, WILLIAMS MULLEN, P.C.,
McLean, Virginia, for Appellant Dougherty; Thomas W. Carpenter,
THOMAS W. CARPENTER, P.C., Newport News, Virginia, for
Appellant Secor; Stephen John Weisbrod, WEISBROD & PHILLIPS,
P.C., Hampton, Virginia, for Appellant Blanchard. Raymond Edward
Patricco, Jr., Assistant United States Attorney, Alexandria, Virginia,
for Appellee. ON BRIEF: Edward W. Wolcott, Jr., Samuel W.
Meekins, Jr., WOLCOTT, RIVERS, WHEARY, BASNIGHT &
KELLY, P.C., Virginia Beach, Virginia, for Appellant Dougherty.
Paul J. McNulty, United States Attorney, Alexandria, Virginia; Rob-
ert J. Seidel, Jr., Assistant United States Attorney, Norfolk, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In this consolidated appeal, Franceyn Secor ("Secor"), John Blan-
chard ("Blanchard"), and William Dougherty ("Dougherty") challenge
their convictions and sentences resulting from charges that they
attempted to conceal Blanchard’s income from the Internal Revenue
Service ("IRS") in violation of several provisions of the Internal Rev-
enue Code (the "Code"). Separately, Secor and Dougherty also chal-
lenge the validity of several of the district court’s evidentiary rulings
and its refusal to give certain jury instructions. For the following rea-
sons, we find that their challenges lack merit and therefore affirm the
judgment below.
UNITED STATES v. SECOR 3
I.
In 1989, Franceyn Secor and John Blanchard married and moved
from New York to Williamsburg, Virginia, where Blanchard began
working as a commissioned salesperson for Berryman Chemicals.
Blanchard requested that Bob Berryman, the President of Berryman
Chemicals, direct deposit his commission payments into Secor’s bank
account in Buffalo, New York. The government alleges that Blan-
chard made this request in order to evade payment of an existing tax
liability to the IRS dating back to the early 1980s.
Shortly after moving to Virginia, Blanchard and Secor hired Wil-
liam Dougherty, a tax attorney and certified public accountant
("CPA"), to assist them with various tax-related matters. The forma-
tion of this business relationship would ultimately lead to the underly-
ing prosecution. Blanchard, Secor, and Dougherty would become the
brain trust behind the fraudulent tax scheme at issue. Dougherty’s role
in this scheme was both to assist Blanchard in avoiding his existing
tax liability and to limit Secor’s tax liability. To accomplish these
objectives, Dougherty prepared and filed false tax returns on behalf
of Blanchard and Secor throughout the early and mid-1990s. These
tax returns falsely indicated that Secor earned income from Berryman
Chemicals. In fact, Secor had never been employed by Berryman
Chemicals but was instead employed by a local real estate company
in Virginia.
In May 2001, a grand jury indicted Secor, Blanchard, and Dou-
gherty on charges that they: (1) conspired to defraud the United States
in violation of 18 U.S.C. § 371 (Count 1); (2) evaded payment of a
tax liability in violation of 26 U.S.C. § 7201 (Counts 2-6); (3)
attempted to evade tax payments in violation of 26 U.S.C. § 7201;
(Counts 7-11); (4) made a false statement to the IRS in violation of
26 U.S.C. § 7206(1) (Count 12) and 18 U.S.C. § 1001 (Count 13);
and (5) aided and abetted in the preparation of false tax returns in vio-
lation of 26 U.S.C. § 7206(2) (Counts 14-21).
During the course of a two-week trial in October 2001, the govern-
ment tried its case against Secor, Blanchard, and Dougherty. The gov-
ernment offered testimonial and documentary evidence to
demonstrate the existence of a scheme to avoid paying Blanchard’s
4 UNITED STATES v. SECOR
tax liability. First, the government offered Bob Berryman’s testimony
that Secor had never worked for his company, a fact which Blanchard
affirmed when he testified in his own defense.1 Second, the govern-
ment proffered Dougherty’s notes from meetings with Blanchard and
Secor, which documented his advice to the couple to prepare their
taxes in a manner that would permit Secor to evade tax liability and
conceal Blanchard’s ability to satisfy his existing tax liability. For
example, in October 1991, Dougherty noted that "in order to keep
[Secor] clear of [the] IRS," he would need to "redo[ ] [Secor’s] 1040s
showing all income to [Blanchard]" and that "[p]erhaps [B]lanchard
should file, all income to him, MFS (‘married filing single’) for
[19]89 and [19]90 — then wait two years — and go bankrupt." Addi-
tionally, in a February 5, 1996 letter to Blanchard, Dougherty wrote,
"Do you need to rehide this money?" "I don’t like the IRS having
photocopies of all the financial activity — but know of no way to (a)
suppress the date, not (b) delay any further."
Third, the government called IRS Agent Munn, who testified that:
(1) each time the IRS attempted to levy one of Blanchard’s accounts,
he and Secor would open a new account in Secor’s name and have
his commission payments from Berryman Chemicals deposited into
the new account; (2) Dougherty and Blanchard delayed the IRS’s
investigation of Blanchard by requesting numerous time extensions,
failing to appear at scheduled appointments, and failing to bring the
requested information with them when they did appear for the
appointments; (3) the IRS’s investigation of Blanchard revealed that
from 1995 to 1998, Secor claimed on her tax filings to earn $542,232
from Berryman Chemicals, which was actually income that was
earned by Blanchard; and (4) from the mid to late 1990s, despite
Blanchard’s protestations that his income was "very low," Blanchard
and Secor maintained a "lavish lifestyle," which included purchases
of items such as a cruise vacation, a membership to a golf club, and
a Lexus LS400.
At the close of evidence, a jury convicted Blanchard on Counts 1-
6 and 12 of the indictment, Secor on Counts 1, 7-11, and 13 of the
1
Indeed, on cross-examination, Blanchard conceded that the income
reflected on Secor’s 1099’s from 1988-2000 was income earned by him,
not Secor.
UNITED STATES v. SECOR 5
indictment, and Dougherty on Counts 14-21 of the indictment. The
jury acquitted Dougherty of conspiring to defraud the United States,
Count 1 of the indictment. In January 2002, the district court sen-
tenced Secor to 33 months of imprisonment on Counts 1, 7-11, and
13, to run concurrently, and ordered her to pay restitution in the
amount of $253,746.52, as well as the costs of prosecution. The dis-
trict court sentenced Blanchard to 57 months of imprisonment on
Counts 1-6 and 12, to run concurrently on each count, and ordered
him to pay $345,350.13 in restitution as well as the costs of prosecu-
tion. Finally, Dougherty was sentenced to 36 months of imprisonment
on Counts 14-21, to run concurrently on each count, and ordered to
pay restitution in the amount of $93,542.00 and the cost of prosecu-
tion. Secor, Blanchard, and Dougherty then timely filed this consoli-
dated appeal.
II.
In reviewing a challenge to the sufficiency of the evidence support-
ing a conviction, we must sustain the verdict if "there is substantial
evidence, taking the view most favorable to the Government, to sup-
port it." United States v. Gallimore, 247 F.3d 134, 136-37 (4th Cir.
2001) (quoting Glasser v. United States, 315 U.S. 60, 80 (1942)).
Questions concerning the admissibility of evidence or the propriety of
including jury instructions are reviewed for abuse of discretion. See
United States v. Chin, 88 F.3d 83, 87 (4th Cir. 1996) (noting that this
Court reviews the refusal to admit evidence for abuse of discretion);
United States v. Whittington, 26 F.3d 456, 462 (4th Cir. 1994) (setting
forth the standard of review applicable to a challenge to the content
or inclusion of a particular jury instruction). The district court’s con-
clusion that a government agent’s report does not contain statements
discoverable under the Jencks Act is reviewed for clear error. United
States v. Escamilla, 467 F.2d 341, 345 (4th Cir. 1972). Finally, this
Court reviews the findings of fact supporting sentencing for clear
error. United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir.
1989).
III.
A.
On appeal, Blanchard raises four issues. First, he challenges the
sufficiency of the evidence supporting his conviction for conspiring
6 UNITED STATES v. SECOR
to defraud the United States in violation of 18 U.S.C. § 371 (Count
1). Second, he challenges the sufficiency of the evidence supporting
his conviction for attempting to evade payment of taxes in violation
of 26 U.S.C. § 7201 (Counts 2-6). Third, Blanchard contends that
there is insufficient evidence to support his conviction for violating
26 U.S.C. § 7206(1), which prohibits the making of false statements
to a government agency (Count 12). Finally, Blanchard argues that
the court should have instructed the jury regarding willful failure to
pay taxes, the lesser included offense of a § 371 violation. For the fol-
lowing reasons, we conclude that all of his arguments are devoid of
merit.
1.
In order to satisfy its burden in proving a violation of § 371, "the
government must prove that "an agreed upon objective of the criminal
conspiracy was to thwart the IRS’s efforts to determine and collect
income taxes." United States v. Hairston, 46 F.3d 361, 374 (4th Cir.
1995) (internal quotation omitted). "A conviction under § 371 will not
stand where impeding the IRS was only a collateral effect of the con-
spiracy." Id. Here, there is overwhelming evidence that Blanchard and
Secor conspired to thwart the IRS’s efforts to collect Blanchard’s tax
liability. The government proffered evidence that each time it
attempted to levy one of Blanchard’s bank accounts, he would open
a new account in Secor’s name. The government also demonstrated
that despite Blanchard’s putative penury, he and Secor maintained a
"lavish lifestyle." In addition, Blanchard admitted, upon cross-
examination, that the income reflected on Secor’s Form 1099’s from
1988 until 2000, was income that he, not Secor, earned. This evi-
dence, viewed in the light most favorable to the government, is
clearly sufficient to prove that Blanchard violated § 371.
2.
Blanchard also challenges the sufficiency of the evidence support-
ing his conviction under 26 U.S.C. § 7201. Section 7201 states in rel-
evant part:
Any person who willfully attempts in any manner to evade
. . . any tax imposed by this title or the payment thereof
UNITED STATES v. SECOR 7
shall, in addition to other penalties provided by law, be
guilty of a felony and upon conviction thereof, shall be fined
not more than $100,000 . . . or imprisoned not more than 5
years, or both, together with the costs of prosecution.
26 U.S.C. § 7201. To prove a violation of § 7201, therefore, the gov-
ernment must demonstrate: (1) that the defendant acted willfully; (2)
that the defendant committed an affirmative act that constituted an
attempted evasion of tax payments; and (3) that a substantial tax defi-
ciency existed. United States v. Wilson, 118 F.3d 228, 236 (4th Cir.
1997). In determining whether a defendant has attempted to evade
payment of his taxes in violation of § 7201, "[t]he jury may infer a
‘willful attempt’ from ‘any conduct having the likely effect of mis-
leading or concealing.’" Id. (internal citation omitted). In the instant
case, while there is no dispute that Blanchard owed a substantial tax
deficiency, Blanchard disputes that he took affirmative acts to evade
payment of this tax liability.
The government, however, introduced evidence demonstrating that
Blanchard: (1) requested that Berryman deposit his commission pay-
ments into an account held by Secor; (2) opened new bank accounts
in Secor’s name when the IRS attempted to levy on his old accounts;
and (3) misled IRS agents by informing them on at least one occasion
that his income was "very low" while, in fact, he had received sub-
stantial commission payments. Given the foregoing evidence and
Blanchard’s admission that the income from Berryman Chemicals
listed on Secor’s Form 1099’s was income earned by him, the jury
had ample basis to conclude that Blanchard took affirmative steps to
evade payment of his tax liability.
3.
Blanchard also contests his conviction under Count 12 — filing
false tax returns with the IRS in violation of 26 U.S.C. § 7206(1) —
contending that he did not make a false statement either on Forms
433-A or Form 433-B. We also find this argument to be contradicted
by the government’s proofs.
The government may prove a violation of § 7206(1) by proffering
evidence that: "(1) the defendant made and subscribed to a tax return
8 UNITED STATES v. SECOR
containing a written declaration; (2) the tax return was made under
penalties of perjury; (3) the defendant did not believe the return to be
true and correct as to every material matter; and (4) the defendant
acted willfully." United States v. Nocolaou, 180 F.3d 565, 572 (4th
Cir. 1999) (internal quotation omitted). The government produced
evidence at trial, which included Berryman’s testimony, that on Form
433-A, Blanchard falsely represented, inter alia, that he was
employed by Secor as a chemical trader. Blanchard himself conceded
this misrepresentation during cross-examination, when he admitted
that he, not Secor, was employed by Berryman Chemicals. In light of
this evidence, this Court concludes that there was sufficient evidence
to convict Blanchard for violating § 7206(1). We therefore affirm his
conviction on Count 12.
4.
Finally, Blanchard argues that the district court failed to charge the
jury with the lesser-included offense § 371, "willful failure to pay
taxes." This Court has noted, however, that defendants are not entitled
to instructions regarding lesser-included offenses as a matter of
course. See United States v. Wright, 131 F.3d 1111, 1112 (4th Cir.
1997). "In order to receive a lesser-included offense instruction,
‘proof of the element that differentiates the two offenses must be suf-
ficiently in dispute that the jury could rationally find the defendant
guilty of the lesser offense but not guilty of the greater offense.’"
Wright, 131 F.3d at 1112 (internal citation omitted). As explained in
section III.A.1, however, there is ample evidence supporting the
jury’s finding that Blanchard was guilty of conspiracy to defraud the
United States. Accordingly, we conclude that the district court did not
abuse its discretion in refusing to provide the jury with Blanchard’s
proffered instruction. We now turn to the merits of Secor’s appeal.
B.
On appeal, Secor challenges the sufficiency of the evidence sup-
porting her convictions for: (1) conspiring to defraud the United
States (Count 1); (2) attempting to evade tax payments in violation of
26 U.S.C. § 7201 (Counts 7-11); and (3) making false statements to
the IRS in violation of 18 U.S.C. § 1001 (Count 13). Like Blanchard,
she also argues that the district court erred in refusing to instruct the
UNITED STATES v. SECOR 9
jury on a lesser-included offense. Finally, Secor contends that the dis-
trict court erred not only in requiring her to pay restitution for Blan-
chard’s failure to pay his tax liability but also in refusing to recognize
that she was a "minor participant" in the conspiracy. After reviewing
the record and relevant case law, we affirm her convictions and sen-
tence.
1.
Based on the evidence discussed above, the jury reasonably con-
cluded that Blanchard and Secor conspired to defraud the United
States in violation of 18 U.S.C. § 371. The government produced evi-
dence demonstrating that Secor assisted Blanchard in concealing his
income from the IRS by filing tax returns falsely indicating that she
earned income from Berryman Chemicals. In furtherance of Blan-
chard’s scheme to avoid the IRS’s tax levies, Secor also permitted
him to open new bank accounts in her name. This evidence amply
buttresses the government’s theory that Secor and Blanchard con-
spired to thwart the IRS’s efforts to determine and collect Blanchard’s
income taxes. See Hairston, 46 F.3d at 374.
2.
Secor also argues that this Court should reverse her five convic-
tions for attempting to evade tax payments in violation of 26 U.S.C.
§ 7201. She contends that there was a benign purpose for the income
apportionment scheme that she and Blanchard implemented to report
their income tax; to wit, the couple sought to separate their respective
potential tax liabilities by filing separately. Alternatively, Secor con-
tends that the apportionment of the income between herself and Blan-
chard for tax filing purposes "was designed to recognize Secor’s
$10,000 financial investment in Blanchard’s re-entry into the chemi-
cal trading business in 1988 and to compensate her for foregoing her
degree in anthropology." Br. for Appellants, at 26. Finally, Secor
maintains that her convictions should be reversed because she not
only filed her income taxes but also paid any tax liability she owed.
Section 7201 applies not only to a taxpayer who owes a deficiency
but also to those who assist another in concealing his or her income
from the IRS. See, e.g., United States v. Wilson, 118 F.3d 228, 236
10 UNITED STATES v. SECOR
(4th Cir. 1997) (noting that an attorney who had assisted taxpayer-
defendant in concealing his income and who prepared and executed
false notes was guilty of violating § 7201); United States v. Frazier,
365 F.2d 316 (6th Cir. 1966) (finding non-taxpayer defendant guilty
of willfully attempting to evade taxes by assisting co-defendant in
concealing his assets). Thus, the issue is not whether Secor paid her
own tax liability, but rather whether there is sufficient evidence to
conclude that she assisted Blanchard in concealing his. As discussed
above, there is ample evidence to support this conclusion, including
Blanchard’s testimony that Secor’s tax returns falsely represented that
she earned income from Berryman Chemicals. We therefore affirm
her convictions under § 7201.
3.
Finally, Secor challenges the sufficiency of the evidence support-
ing her conviction for making a false statement to the IRS in violation
of 18 U.S.C. § 1001. "A person is guilty of making false statements
to a government agency when the government proves: (1) that the
defendant made a false statement to a governmental agency or con-
cealed a fact from it or used a false document knowing it to be false;
(2) the defendant acted knowingly or willfully; and (3) the false state-
ment . . . was material to a matter within the jurisdiction of the
agency." United States v. Sarihifard, 155 F.3d 301, 306 (4th Cir.
1998). This Circuit has explained that "[a] statement is material if it
has the natural tendency to influence, or is capable of influencing, the
decision-making body to which it was addressed." Id. (internal quota-
tion omitted).
The government alleges that on November 10, 1997, Secor told an
IRS agent that since 1988, Blanchard had worked for her in her chem-
ical trading business and that she had conversations with Bob Berry-
man concerning potential chemical purchases. Secor also claimed that
she directed Berryman to deposit commission payments into her bank
account because she would have a more active role in the chemical
trading business. However, Berryman and Blanchard testified that
Secor was not involved in Berryman’s chemical business. This evi-
dence supports the jury’s conclusion that Secor’s statement to the
contrary was false and made in a willful effort to conceal Blanchard’s
actual income from the IRS, which was of course material. We con-
UNITED STATES v. SECOR 11
clude that there is sufficient evidence to sustain Secor’s conviction
under 18 U.S.C. § 1001 and therefore affirm her conviction on this
count.
4.
In addition to her sufficiency of the evidence challenges, Secor
argues that the district court abused its discretion by refusing to
instruct the jury on the lesser-included offenses of (1) conspiracy to
fail to pay taxes, which Secor maintains is contained in § 371, and (2)
misdemeanor failure to pay income taxes under 26 U.S.C. § 7203. We
find that the district court did not abuse its discretion in refusing these
instructions.
First, we have concluded that there is sufficient evidence to sustain
Secor’s conviction under § 371, and thus, she would not be entitled
to a lesser included offense on this charge. See Wright, 131 F.3d at
1112. Second, as to her claim that she was entitled to an instruction
for misdemeanor failure to pay taxes, there is no evidence in the
record that she requested that the district court provide this instruc-
tion. Because Secor did not raise this objection at trial, we review the
district court’s failure to provide this instruction for plain error.
United States v. Stitt, 250 F.3d 878, 882-83 (4th Cir. 2001) (setting
forth the standard of review where defendant fails to object at trial).
To establish plain error, Secor must show that: (1) an error occurred;
(2) the error was plain; (3) the error affected her substantial rights;
and (4) the error seriously affects the fairness, integrity, or public rep-
utation of judicial proceedings. Id. (citing United States v. Olano, 507
U.S. 725, 732 (1993)).
Here, Secor fails to satisfy the plain error test. Even assuming that
Secor had proffered the misdemeanor failure to pay taxes instruction,
the Supreme Court has explained that under § 7201, a lesser-included
offense instruction is necessary only if "there were disputed issues of
fact which would enable the jury rationally to find that, although all
of the elements of § 7201 have not been proved, all of the elements
of the lesser included misdemeanor have been proved." Sansone v.
United States, 380 U.S. 343, 351 (1965). Secor would not be entitled
to the lesser included offense instruction because, as discussed above,
there is sufficient evidence to sustain her conviction under § 7201.
12 UNITED STATES v. SECOR
5.
Next, Secor argues that the district court abused its discretion by
refusing to admit a letter written by Dougherty to the IRS on January
1, 1998. Secor contends that the admission of this letter, which
attempted to persuade the IRS that Secor’s and Blanchard’s financial
activities were legitimate and not worthy of investigation, was rele-
vant to her reliance upon advice of counsel defense.2 The district court
properly excluded Dougherty’s letter because the statements con-
tained therein were offered to prove the truth of the matter asserted
— namely, that Secor’s and Blanchard’s income tax apportionment
scheme was lawful — and thus were inadmissible under Federal Rule
of Evidence 802. The district court therefore did not abuse its discre-
tion by refusing to admit this evidence.
6.
Having affirmed Secor’s convictions, we now turn to the two sen-
tencing issues she has raised on appeal. First, Secor challenges the
amount of tax loss the district court attributed to her at sentencing.
Second, Secor contends that the district court erred in refusing to rec-
ognize that she was a "minor participant" in the offenses committed,
a finding which would entitle her to a two to three-level decrease in
her total offense level. After reviewing the record and the relevant
statutory and case law, we affirm Secor’s sentence.
Section 2T1.1(c) of the United States Sentencing Guidelines estab-
lishes a formula for the determination of the tax loss attributable to
a defendant. Section 2T1.1(c) provides in relevant part: "If the offense
involved tax evasion or a fraudulent or false return, statement, or
2
Both Secor and Blanchard argue that they are entitled to invoke the
reliance on advice of counsel defense. In order to properly invoke this
defense, the defendant must demonstrate: (1) full disclosure of all perti-
nent facts to counsel; and (2) good faith reliance on counsel’s advice. See
United States v. Butler, 211 F.3d 826, 833 (4th Cir. 2000). Given the evi-
dence that Blanchard and Secor knowingly filed false tax returns, they
cannot satisfy the good faith prong of this defense. Accordingly, neither
Blanchard nor Secor may avail himself or herself of the protections
afforded under the reliance on advice of counsel defense.
UNITED STATES v. SECOR 13
other document, the tax loss is the total amount of loss that was the
object of the offense (i.e., the loss that would have resulted had the
offense been successfully completed)." U.S.S.G. § 2T1.1(c). At sen-
tencing, the district court relied upon the facts and calculations set
forth in Secor’s pre-sentence report and concluded that Secor was lia-
ble for $253,746.52, the amount of tax deficiency owed by Blanchard
during the years that Secor falsely claimed income from Berryman
Chemicals. We conclude that this finding is not clearly erroneous.
Lastly, Secor argues that the district court erred when it concluded
that she was not a "minor participant" in the tax evasion scheme, for
the purpose of determining her total offense level. In order to deter-
mine whether a defendant is a "minor participant," the critical inquiry
is . . . not whether the defendant has done fewer ‘bad acts’ than his
[or her] co-defendants, but whether the defendant’s conduct is mate-
rial or essential to committing the offense." United States v. Palinkas,
938 F.2d 456, 460 (4th Cir. 1991). Here, the jury found that Secor
filed false tax returns and made false statements to the IRS in an
effort to conceal Blanchard’s actual income from the IRS. Based on
this evidence, this Court concludes that the district court’s finding on
this point was not erroneous, let alone clearly erroneous. Having
affirmed Secor’s convictions and sentence, the Court will now review
the merits of Dougherty’s appeal.
C.
Dougherty raises a number of issues on appeal. First, Dougherty
argues that there is insufficient evidence to support his convictions for
aiding and abetting in the preparation of false tax returns in violation
of 26 U.S.C. § 7206(2) (Counts 14-21). Second, Dougherty contends
that four of his convictions for violating § 7206(2) — Counts 15, 17,
19, and 21 — should be reversed because there was a material vari-
ance in the indictment and the government’s proffered evidence on
these counts. Third, Dougherty claims that the district court abused its
discretion when it: (1) denied Dougherty’s Jencks Act request; (2)
refused to admit into evidence a taped conversation between Dou-
gherty and his former employee; (3) permitted the government to
argue, over Dougherty’s objection, that Dougherty had a legal duty as
power of attorney to produce Secor’s and Blanchard’s tax records;
and (4) provided the jury with a "deliberate ignorance" instruction.
14 UNITED STATES v. SECOR
Finally, Dougherty argues that the district court’s factual findings at
sentencing were clearly erroneous.
1.
Dougherty first challenges the sufficiency of the evidence support-
ing his convictions for aiding in the preparation of a false tax return
in violation of 26 U.S.C. § 7206(2). To prove a violation of this provi-
sion of the Internal Revenue Code, the government must demonstrate
that: (1) the defendant aided, assisted, or otherwise caused the prepa-
ration of a return; (2) the return was fraudulent or false as to a mate-
rial matter; and (3) the act was willful. United States v. Aramony, 88
F.3d 1369, 1382 (4th Cir. 1996). Dougherty does not dispute that he
prepared Blanchard’s and Secor’s tax returns. Instead, he argues the
government failed to prove that Dougherty knew that the tax returns
were fraudulent or that he willfully prepared false tax returns. For the
following reasons, we reject these arguments.
From 1995 until 2000, Dougherty prepared Secor’s tax returns,
which stated that she received income from Berryman Chemicals.
Dougherty insists he was unaware that Secor was not employed at
Berryman Chemicals. Blanchard, however, testified at trial that Dou-
gherty was aware since 1994 that Blanchard, not Secor, earned
income from Berryman Chemicals. Dougherty’s records, which
chronicle his practice of arbitrarily transferring income between Blan-
chard and Secor, similarly suggest he was aware that Secor was not
employed by Berryman Chemicals. For example, in October 1991,
Janel Lucas, a former employee of Dougherty’s, wrote:
With the chemical market "gone to hell[,]" apparently your
cash flow has "gone to hell[.]" This puts a whole new per-
spective on how to proceed in filing these returns. If we file
Franceyn’s return showing the income as we had considered
doing, she will of course owe tax. Now that cash flow is so
bad, she will not be able to pay the tax and will be in serious
tax trouble. That would make both of you in serious tax
trouble. If we file the income going back to John, we have
only one individual in trouble.
In Dougherty’s November 25, 1991 written notes, he opined: "The
original plan had been for [Secor] to be the primary money winner,
UNITED STATES v. SECOR 15
with John working for her . . . . [Secor] said they don’t have money
for tax . . . . Most important — Keep [SECOR] clear of IRS, which
I agree. This[ ] [will] mean redoing [ ] [Secor’s] 1040’s showing all
income to John."
In addition to arbitrarily transferring Berryman Chemical income
between Blanchard and Secor, Dougherty also prepared and filed
Secor’s tax returns, reporting "cost of goods sold" deductions for
chemical trade commissions Secor allegedly paid to Blanchard. As
discussed above, however, Bob Berryman testified that Secor was
never employed by, nor involved in any way with his chemical trad-
ing business, a fact which Blanchard affirmed. We conclude therefore
that there is sufficient evidence to support the jury’s finding that Dou-
gherty willfully prepared and filed false tax returns in violation of
§ 7206(2).
2.
Dougherty also argues that his convictions on Counts 15, 17, 19
and 21 should be reversed because of an alleged material variance in
the indictment and the government’s proffered evidence. According
to Dougherty, "the government charged [in the indictment] that
Secor’s Schedule C overstated her costs of goods sold in that she
reported $73,000, $43,000, $81,466, and $66,808, when she allegedly
should have reported ‘0.’" Br. of Appellants, at 27. At trial, however,
the government offered evidence that Secor overstated her income.
The inquiry for determining whether a material variance exists
requires this Court to assess whether "the government, through its
presentation of evidence and/or its argument, . . . broadened the bases
for conviction beyond those charged in the indictment . . . ." United
States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999). In Randall, we
explained, however, that "not all differences in an indictment and the
proof at trial, rise to the ‘fatal’ level of a constructive amendment.
When different evidence is presented at trial but the evidence does not
alter the crime charged in the indictment, a mere variance occurs."
171 F.3d at 203. "A mere variance does not violate a defendant’s con-
stitutional rights unless it prejudices the defendant by either surprising
him at trial and hindering the preparation of his defense, or by expos-
ing him to the danger of a second prosecution for the same offense."
16 UNITED STATES v. SECOR
Id. This Court therefore must reverse a defendant’s conviction only
if the appellant demonstrates that the variance infringed on his sub-
stantial rights, resulting in actual prejudice. See United States v. Ken-
nedy, 32 F.3d 876, 883 (4th Cir. 1994).
Counts 15, 17, 19, and 21 allege that Dougherty prepared and filed
false tax returns in violation of 26 U.S.C. § 7206(2). Whether the gov-
ernment presented evidence that Secor’s tax returns overstated her
income, or it proffered evidence that Dougherty overstated Secor’s
cost of goods deductions does not alter the core criminal conduct
charged in the indictment — that Dougherty willfully assisted Secor
in preparing and filing false tax returns. Accordingly, we conclude
that there was no material variance in the indictment and the evidence
presented at trial and therefore affirm Dougherty’s convictions on
these counts.3
3.
Next, Dougherty alleges that the district court abused its discretion
when it made several evidentiary rulings and refused to provide the
jury with a "deliberate ignorance" instruction. We find these chal-
lenges to be without merit.
First, Dougherty contends that the government’s failure to produce
IRS Agent Turner’s Special Agent Report ("SAR") violated 18 U.S.C.
§ 3500 (the "Jencks Act") because "it was likely that Turner’s testi-
mony [at trial] fell within the scope of what he would have included
in his SAR." Br. of Appellant William J. Dougherty, at 26. Mere alle-
gations are insufficient to prove a violation of the Jencks Act. The
defendant must establish an adequate foundation. United States v.
Boyd, 53 F.3d 631, 633 (4th Cir. 1995). At Dougherty’s request, the
district court conducted an in camera review of the agent’s report and
concluded that "there [was] no Jencks material in this report that had
not been provided to [Dougherty]." Dougherty did not object to the
3
Secor also argues that her convictions on Counts 7 through 11 should
be reversed because there is a material variance in the indictment and the
evidence the government proffered against her at trial. As discussed in
greater detail above, there is no material variance in the indictment and
the evidence presented at trial and thus we affirm her convictions.
UNITED STATES v. SECOR 17
manner in which the district court conducted its review of the SAR
and thus without more, we cannot conclude that the district court’s
finding on this issue is clearly erroneous.
Second, Dougherty claims that the district court erred by refusing
to admit a taped conversation between himself and his former
employee. Dougherty contends that this audiotaped conversation, in
which he told his employee to "tell the truth" to the IRS, demonstrates
his lack of willfulness in committing the offenses at issue and should
have been admitted into evidence under Federal Rule of Evidence
803(3), as evidence of his then existing state-of-mind. At the time
Dougherty made these statements, however, he was aware that he was
under investigation by the IRS and that his employee had an appoint-
ment to meet with IRS agents later that day. Given the circumstances
under which Dougherty made these statements, therefore, the district
court properly excluded this evidence because Dougherty had time to
reflect and fabricate. See United States v. Reyes, 239 F.3d 722 (5th
Cir. 2001) (noting that for a hearsay statement to be admissible, it
must have been contemporaneous with the state of mind sought to be
proved and the defendant must not have had time to reflect and possi-
bly fabricate or misrepresent his thoughts). In any event, Dougherty
testified during trial that he told his former employee "just to tell the
truth" and "don’t lie." Thus, the district court properly refused to
admit the taped conversation as it would have been duplicative of
Dougherty’s trial testimony. See Fed. R. Evid. 403 (explaining that
the district court may exercise its discretion to exclude certain evi-
dence when its "probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues . . . or by consider-
ations of undue delay, waste of time, or needless presentation of
cumulative evidence").
Third, Dougherty argues that the government improperly argued at
trial that Dougherty, as power of attorney for Blanchard and Secor,
had a legal duty to produce the couple’s tax documents, which were
requested by the IRS as part of its investigation. Dougherty claims
that the district court’s failure to instruct the jury that Dougherty was
under no such legal duty constituted an abuse of discretion. We dis-
agree.
The indictment charged that Dougherty engaged in "obstructive
behavior and delay tactics designed to conceal Blanchard and Secor’s
18 UNITED STATES v. SECOR
income and assets from the IRS," by refusing "to provide the IRS
with Blanchard’s and Secor’s bank statements and financial informa-
tion, despite numerous requests and contacts by the IRS and assur-
ances by Dougherty that he would provide them." The indictment did
not allege that, as a power of attorney, Dougherty had a legal obliga-
tion to provide the documents. During trial, it was Dougherty’s coun-
sel who on direct examination first questioned Dougherty regarding
his knowledge of any IRS rules or regulations that would obligate him
to produce Blanchard’s records. Dougherty responded that he was
aware of a provision in the Internal Revenue Code related to power
of attorneys. Thus, Dougherty’s counsel "opened the door" to the gov-
ernment to pursue this line of questioning, and thus, the district court
did not abuse its discretion in either permitting this testimony or
refusing to instruct the jury that Dougherty was under no such legal
duty. See United States v. Mohr, 318 F.3d 613, 626 (4th Cir. 2003).
Finally, Dougherty objects to the district court’s decision to instruct
the jury regarding "deliberate ignorance." A willful blindness or
deliberate ignorance instruction allows a "jury to impute the element
of knowledge to [a] defendant if the evidence indicates that he pur-
posefully closed his eyes to avoid knowing what was taking place
around him." United States v. Schnabel, 939 F.2d 197, 203 (4th Cir.
1991). The district court properly utilizes this instruction when the
evidence supports an inference of deliberate ignorance on the part of
the defendant. United States v. Abbas, 74 F.3d 506, 513 (4th Cir.
1996); Schnabel, 939 F.2d at 203 ("When there is evidence of both
actual knowledge and deliberate ignorance . . . a willful blindness
instruction is appropriate."). In this case, the issue was whether Dou-
gherty was aware that Secor was not employed by Berryman Chemi-
cals for purposes of convicting him under § 7206(2). Blanchard
testified that Dougherty was aware that Berryman Chemicals did not
employ Secor. Dougherty’s records, furthermore, indicate that he not
only willingly transferred income between Secor and Blanchard on
their tax returns but was also concerned about alerting the IRS to
Blanchard’s whereabouts. Thus, even assuming that Dougherty did
not have actual knowledge of this fact, the jury could reasonably con-
clude that Dougherty "closed his eyes to avoid knowing what was tak-
ing place around him." Schnabel, 939 F.2d at 203. Accordingly, we
conclude that the district court did not abuse its discretion by instruct-
ing the jury on "deliberate ignorance."
UNITED STATES v. SECOR 19
4.
Having affirmed Dougherty’s convictions, we now turn to his argu-
ment that the district court’s factual findings at sentencing were
clearly erroneous. After reviewing the record and the relevant case
law, we conclude that there are no infirmities in the district court’s
findings of fact.
Dougherty first contests the district court’s finding that he perjured
himself at trial and therefore was entitled to a two-level enhancement
under U.S.S.G. § 3C1.1. Section 3C1.1 permits the district court to
impose a two-level enhancement "if the defendant willfully
obstructed or impeded, or attempted to obstruct or impede, the admin-
istration of justice during the . . . prosecution of the instant offense."
U.S.S.G. § 3C1.1. In order to apply § 3C1.1 at sentencing, the district
court must review the evidence and make an independent finding that
the defendant: (1) gave false testimony; (2) concerning a material
matter; (3) with the willful intent to deceive, rather than as a result
of confusion or mistake. United States v. Dunnigan, 507 U.S. 87, 92-
98 (1993).
At Dougherty’s sentencing, the district court adopted the pre-
sentence report, which detailed the statements with which Dougherty
committed perjury. After reviewing the record, we are satisfied that
these findings of fact are not clearly erroneous. The district court sat-
isfied the evidentiary inquiry required under Dunnigan, and thus, we
affirm Dougherty’s sentence. See United States v. Gilliam, 987 F.2d
1009, 1014 (4th Cir. 1993) (explaining that a court may adopt the
findings of fact contained in a pre-sentence report at sentencing).
Dougherty also appeals the district court’s decision to impose a
$253,746.52 restitution order. The findings of fact set forth in the pre-
sentence report thoroughly detail the assistance Dougherty provided
Blanchard in Blanchard’s attempt to evade paying his tax deficiency.
Because the district court adopted these findings and we find that
these factual findings are not clearly erroneous, we affirm the district
court’s restitution order.
IV.
We have reviewed the record and the relevant statutory and case
law and conclude that there are no infirmities warranting reversal of
20 UNITED STATES v. SECOR
Blanchard’s, Secor’s, or Dougherty’s convictions or requiring re-
sentencing. Accordingly, the jury’s verdict and the district court’s
imposition of sentence in this matter are hereby
AFFIRMED.