United States v. Anthony Sertich, Jr. , 879 F.3d 558 ( 2018 )

Case: 16-51210 Document: 00514297983 Page: 1 Date Filed: 01/08/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-51210
Fifth Circuit
FILED
January 8, 2018
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff–Appellee,
v.
ANTHONY P. SERTICH, JR., Doctor, also known as Anthony Patrick
Sertich, Jr., also known as Anthony Sertich, Jr., also known as Anthony P.
Sertich,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before HIGGINBOTHAM, PRADO, and HIGGINSON, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
Anthony P. Sertich, Jr. was charged and convicted by a jury with ten
counts of violating 26 U.S.C. § 7202 for willfully failing to account for and pay
over to the Internal Revenue Service (“IRS”) the federal income taxes he
withheld from his employees between 2008 and 2010. He was also charged and
convicted of one count of violating 26 U.S.C. § 7201 for willfully attempting to
evade and defeat payment of payroll taxes, penalties, and interest due and
owing to the United States. On appeal, Sertich argues that the district court
issued an incorrect jury instruction as to the elements of an offense under
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§ 7202 and that the trial evidence was insufficient to support his convictions
pursuant to §§ 7201 and 7202. For the reasons given below, we AFFIRM.
I. BACKGROUND
Sertich was a medical doctor and plastic surgeon who owned two medical
entities: South Texas Otorhinolaryngology (“STO”) and Advanced Artistic
Facial Plastic Surgery of Texas (“Advanced Artistic”). These entities employed
staff to whom Sertich paid wages and from whom he withheld payroll taxes.
Between 2002 and 2011, the total balance due for Sertich’s entities was
$2,927,366.45, which Sertich accounted for in the entities’ tax filings, yet failed
to pay over to the IRS.
In 2014, a grand jury charged Sertich in a superseding indictment for
criminal violations of two federal tax laws. Sertich was charged with ten counts
of violating § 7202 by willfully failing to account for and pay over taxes
withheld from his employees in each quarter between the fourth quarter of
2008 and 2010. He was also charged with one count of violating § 7201 by
willfully attempting to evade and defeat the payment of more than $2.9 million
in taxes owed by him and his medical entities. The case went to a five-day jury
trial. The facts are lengthy and complex, but we detail the relevant evidence
below.
At trial, the jury heard evidence that Sertich had submitted wage and
tax statements to the IRS showing that money had been withheld from his
employees at STO, and that he had claimed credit against his personal tax
liabilities for the withheld amounts. The jury also heard evidence that he
repeatedly failed to pay over those withheld funds. In 2004, partially because
Sertich was behind on STO’s tax liabilities, STO went out of business, and
Sertich moved himself and his staff to Advanced Artistic. In October 2004,
Sertich filed for Chapter 11 bankruptcy—the fourth time since 1992. Because
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he filed under Chapter 11, the government’s collection efforts ceased until
Sertich again failed to make scheduled payments.
Several IRS officers testified. One officer noted, for example, that the IRS
attempted to contact Sertich in 2005 at his personal residence and mailed him
a letter to encourage him to file quarterly tax returns for STO. Sertich made
no reply. Another officer testified that beginning in November 2006, the IRS
attempted to visit Sertich at his business address. The officer testified they
repeatedly sent letters to try and work with Sertich to deposit amounts
withheld from the paychecks of Advanced Artistic’s employees and requested
financial records from Sertich, yet Sertich failed to comply with those requests
even as late as mid-2007. In late 2007, the IRS issued a levy to Sertich’s bank.
In January 2008, Sertich filed bankruptcy for a fifth time, on behalf of
Advanced Artistic, once again halting collection efforts. Sertich and his
attorney met with the IRS for an interview and produced information about
his assets and liabilities. Sertich agreed to make payments while his
bankruptcy was pending, but failed to make those payments. His bankruptcy
case was dismissed in 2009.
Revenue officers once again took steps to collect. The IRS representative
testified that the IRS made multiple attempts in 2009 and 2010 to contact
Sertich and collect on his tax delinquency. A revenue officer informed Sertich
that if he did not satisfy his tax delinquency by selling or mortgaging his
residence, forced collection would begin. The IRS eventually issued levies on
Sertich’s bank accounts and insurance reimbursements and money was
diverted to the IRS to satisfy his tax delinquencies. In the fall of 2010, a
revenue officer served Sertich with a summons seeking financial records and
testimony. In December 2010, Sertich filed for bankruptcy, once again halting
collection efforts. This 2010 bankruptcy filing was dismissed in August of 2011.
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Throughout the relevant time period, Sertich’s accountants and others
told him “on a regular basis” that he owed taxes, that he needed to file and pay
his taxes timely, that “it’s going to become an issue,” and that the “IRS . . . will
not understand the circumstances.” Sertich ultimately racked up a tax
delinquency of over $2.9 million.
At trial, Sertich took the stand in his own defense. He told the jury that
he always intended to pay his taxes. He stated that his failure to do so was
related to personal and family issues, and because he lacked the financial
ability to comply. Sertich admitted he pursued bankruptcy filings to develop a
payment plan, stressing that he always intended to make good on his debts.
He also explained that because his accountant told him he would have to pay
interest on his tax delinquency, he “assumed” the delinquency “was a loan”
from the federal government.
The jury found Sertich guilty on all counts. The district court sentenced
Sertich to 41 months of imprisonment followed by three years of supervised
released. Sertich filed and renewed a motion for a judgment of acquittal after
the Government’s case-in-chief and the jury’s verdict. Sertich also filed a
motion for a new trial following the jury’s guilty verdict. The district court
denied his motions. Sertich timely appealed.
II. DISCUSSION
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). On appeal, Sertich challenges the district court’s jury instructions
as to § 7202 and the sufficiency of the evidence supporting his convictions
pursuant to §§ 7201 and 7202.
A. The Jury Instruction as to 26 U.S.C. § 7202
Sertich argues that the district court issued an incorrect jury instruction
as to the elements of an offense under § 7202. He also contends that the district
court wrongly denied his request for a new trial on this ground.
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Sertich objected to the challenged jury instruction in the district court
and therefore preserved this issue for appellate review. Normally, this Court
reviews a jury instruction for abuse of discretion and gives the district court
substantial latitude in describing the law. United States v. Thompson, 811 F.3d
717, 728 (5th Cir. 2016) (citing United States v. Williams, 610 F.3d 271, 285
(5th Cir. 2010)). “Under this standard, we consider whether the charge, as a
whole, was a correct statement of the law and whether it clearly instructed the
jurors as to the principles of the law applicable to the factual issues confronting
them.” Id. (quoting Williams, 610 F.3d at 285). “However, when a jury
instruction hinges on a question of statutory construction, our review is de
novo.” Id. (quoting Williams, 610 F.3d at 285). Since Sertich also raised this
claim in his unsuccessful motion for a new trial, we review that as well. This
Court reviews an order denying a new trial for abuse of discretion, evaluating
questions of law de novo. United States v. Pratt, 807 F.3d 641, 645 (5th Cir.
2015).
Section 7202, titled “[w]illful failure to collect or pay over tax,” provides
that “[a]ny person required . . . to collect, account for, and pay over any tax
imposed by this title who willfully fails to collect or truthfully account for and
pay over such tax shall . . . be guilty of a felony.” 26 U.S.C. § 7202 (emphasis
added). The statute thus naturally breaks into two offenses: (1) willful failure
to collect employees’ taxes; or (2) willful failure to truthfully account for and
pay over withheld taxes. At issue in Sertich’s case is the second offense: willful
failure to truthfully account for and pay over the taxes. The district court
instructed the jury that as to this offense, “the government must prove that
the defendant failed to comply with one of the two duties for which he was
responsible,” either accounting for or paying over a tax. The district court
explained by example that § 7202 is violated if “a responsible person who
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collects taxes from his employees and files [returns] with the Internal Revenue
Service . . . willfully fails to pay over the taxes to the United States.”
Sertich challenges this jury instruction because he believes that liability
under this portion of § 7202 requires that a person both fail to account for and
pay over a tax. That is to say, Sertich suggests that § 7202 states the two
elements in the conjunctive. He asserts that a disjunctive interpretation of
§ 7202 is contrary to the plain language, purpose, and statutory history of
§ 7202, and that the rule of lenity guides a decision in his favor. Under Sertich’s
reading, a proper jury instruction would have noted that he would not be guilty
if he had truthfully accounted for the taxes but failed to pay them over. The
Government asserts that § 7202 is violated by the failure to account for or pay
over a tax.
This is an issue of first impression in our Circuit. Nevertheless, we now
agree with every other circuit to have considered this issue and hold that
§ 7202 is violated if a defendant willfully fails to either truthfully account for
taxes or pay them over. See United States v. Gilbert, 266 F.3d 1180, 1183–85
(9th Cir. 2001); United States v. Thayer, 201 F.3d 214, 220–21 (3d Cir. 1999),
abrogation on other grounds recognized by Fahie v. Virgin Islands, 858 F.3d
162 (3d Cir. 1999); United States v. Evangelista, 122 F.3d 112, 120–22 (2d Cir.
1997). Accordingly, the district court did not err in issuing its jury instructions
or by denying Sertich’s request for a new trial.
First, the text of the provision guides us to this conclusion. We interpret
the plain language of § 7202 to create a dual obligation. That is, § 7202 requires
the defendant to “truthfully account for and pay over” taxes—an obligation
“that is satisfied only by fulfilling both separate requirements.” Evangelista,
122 F.3d at 121 (“[T]he only plausible reading of the plain language of the
statute penalizes the failure to complete the duty imposed by law.” (quoting
United States v. Brennick, 908 F. Supp. 1004, 1017 (D. Mass. 1995))); see also
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Thayer, 201 F.3d at 220–21. Our conclusion as to the text is supported by our
own, unpublished case, Corral-Trevizo v. Holder, 560 F. App’x 421 (5th Cir.
2014). There, we held that an offense under § 7202 is not categorically an
aggravated felony under 8 U.S.C. § 1101(a)(43)(M). Id. at 422. This Court,
citing Gilbert and Evangelista, noted that the defendant’s admission to failing
to pay the tax was—on its own—sufficient for a conviction under § 7202. Id.
Sertich’s proposed construction, in addition to being inconsistent with
the plain meaning, also produces an absurd result. As the Second, Third, and
Ninth Circuits have all recognized, Congress could not have intended to impose
a greater punishment on one who simply failed to collect taxes than someone
who collected and used the taxes for his own purpose so long as he notified the
IRS that he had collected the taxes. See Evangelista, 122 F.3d at 121 (citing
Brennick, 908 F. Supp. at 1017); Thayer, 201 F.3d at 220–21; Gilbert, 266 F.3d
at 1184. Furthermore, as the Government explains, and as the Ninth Circuit
recognized in Gilbert, there is reason to believe that an employer who accounts
for taxes but fails to pay them does even greater harm than an employer who
fails to collect them at all. Gilbert, 266 F.3d at 1184 (“[I]f the Government never
receives the tax money, the Government has to carry the burden of crediting
the employee for withholding taxes that were never paid. . . . [T]he loss is
greater when an employer accounts for the tax, but never remits it to the
IRS.”).
And while the Supreme Court has not directly spoken to this matter, the
Court construed the similarly worded civil counterpart to § 7202—26 U.S.C.
§ 6672—to also require the dual “obligation to withhold and pay the sums
withheld.” Slodov v. United States, 436 U.S. 238, 246–47 (1978) (considering
whether § 6672 makes an employer responsible for paying over taxes collected
by their predecessor). The Supreme Court concluded that §§ “6672 and 7202
were designed to assure compliance by the employer with its obligation to
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withhold and pay the sums withheld,” regardless of whether the employer
personally collected the tax, because otherwise “the penalties easily could be
evaded by changes in officials’ responsibilities prior to the expiration of any
quarter.” Id. at 247. The Court stated: “Because the duty to pay over the tax
arises only at the quarter’s end, a ‘responsible person’ who willfully failed to
collect taxes would escape personal liability for that failure simply by resigning
his position, and transferring to another the decisionmaking responsibility
prior to the quarter’s end.” Id. (footnote omitted). The Court went on:
“Obversely, a ‘responsible person’ assuming control prior to the quarter’s end
could, without incurring personal liability under § 6672, willfully dissipate the
trust funds collected and segregated by his predecessor.” Id. at 247–48
(footnote omitted). Such a conclusion suggests that when a person fails to
perform one of the required duties, he is subject to civil penalties under § 6672
and conviction under § 7202.
Finally, to the extent that there is any ambiguity, we may look to “the
title of a statute and the heading of a section” as tools to resolve any doubt.
Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) (quoting Bhd. of
R.R. Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 528–29 (1947)); see
also United States v. Rabhan, 540 F.3d 344, 347 (5th Cir. 2008) (stating that
courts will “use the title of a statute to resolve ‘putative ambiguities’” (citation
omitted)). Section 7202 is entitled “[w]illful failure to collect or pay over tax.”
26 U.S.C. § 7202 (emphasis added). Such a title suggests a violation when
either duty has not been met. See Thayer, 201 F.3d at 221.
Sertich’s additional arguments to save his construction of the statute
have little merit. He insists that the Ninth Circuit’s opinions in Wilson v.
United States, 250 F.2d 312 (9th Cir. 1957), modified on denial of reh’g, 254
F.2d 291 (9th Cir. 1958), and United States v. Poll, 521 F.2d 329 (9th Cir. 1975),
provide persuasive authority for interpreting § 7202 and its legislative history
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as having a conjunctive requirement. Yet the Ninth Circuit later held that its
statements in Wilson and Poll regarding whether § 7202 required both the
failure to account for and pay over the tax were dicta. Gilbert, 266 F.3d at 1183.
And the court clarified that § 7202 includes a disjunctive requirement. Id. at
1183–85.
Sertich’s reliance on other provisions of the Internal Revenue Code is
also misguided. Sertich asserts that 26 U.S.C. § 7203 supports his reading of
§ 7202. This is because, according to Sertich, § 7203 provides for the
requirement of “keep[ing] such records, or supply[ing] such information,” and
punishes failure with a misdemeanor, while § 7202 provides for the
requirement of “account[ing] for, and pay[ing] over any tax” and punishes
failure with a felony. He asserts that because § 7203 only punishes with a
misdemeanor while § 7202 punishes with a felony, then the differences in
punishments clarify that there is a difference in what constitutes a violation;
in his mind the felony provision must punish more conduct. But § 7203 and
§ 7202 punish different actors. Section 7203 makes clear that it covers any
person responsible for paying any tax, whereas § 7202 applies to a specific tax
collected by a third party, like an employer. Compare 26 U.S.C. § 7203, with
26 U.S.C. § 7202; see also United States v. Tucker, 686 F.2d 230, 232 (5th Cir.
1982) (affirming conviction under § 7203 for willfully failing to pay personal
income tax). The requirements for these actors thus differ and § 7203 does
nothing to change the conclusion that § 7202 provides for a dual obligation.
Finally, acknowledging “contextual ambiguity,” Sertich relies on the rule
of lenity. But the rule of lenity does not help him here. The rule of lenity
provides that “before a man can be punished as a criminal . . . his case must be
‘plainly and unmistakably’ within the provisions of some statute.” United
States v. Gradwell, 243 U.S. 476, 485 (1917) (quoting United States v. Lacher,
134 U.S. 624, 628 (1890)). “But a statute should not be deemed ambiguous for
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purposes of lenity ‘merely because it was possible to articulate a construction
more narrow than that urged by the Government.’” United States v. Casillas-
Casillas, 845 F.3d 623, 626 (5th Cir. 2017) (quoting Moskal v. United States,
498 U.S. 103, 108 (1990)). Rather, the rule “only applies if, after considering
the text, structure, history, and purpose, there remains a grievous ambiguity
or uncertainty in the statute, such that the [c]ourt must simply guess as to
what Congress intended.” United States v. Suchowolski, 838 F.3d 530, 534 (5th
Cir. 2016) (alteration in original) (quoting United States v. Castleman, 134 S.
Ct. 1405, 1416 (2014)). Here, no such egregious ambiguity exists. The text and
purpose of § 7202 clearly impose the dual obligation to account for and pay over
taxes. See Thayer, 201 F.3d at 220–21.
In sum, we now join the Second, Third, and Ninth Circuits, and hold that
§ 7202 is violated when one either willfully fails to account for or pay over taxes
collected.
B. Sufficiency of the Evidence
Sertich also argues that the trial evidence was insufficient to support his
convictions under §§ 7201 and 7202. Sertich timely made and renewed his
motion for judgment of acquittal. See Fed. R. Crim. P. 29(c)(1). Therefore,
Sertich’s claims receive de novo review. United States v. Frye, 489 F.3d 201,
207 (5th Cir. 2007). “A motion for [a] judgment of acquittal challenges the
sufficiency of the evidence to convict.” United States v. Lucio, 428 F.3d 519, 522
(5th Cir. 2005) (quoting United States v. Medina, 161 F.3d 867, 872 (5th Cir.
1998)). When considering the sufficiency of the evidence, this Court evaluates
all evidence, circumstantial or direct, “in the light most favorable to the
government, with all reasonable inferences to be made in support of the jury’s
verdict.” United States v. Grant, 850 F.3d 209, 219 (5th Cir. 2017) (internal
brackets and citations omitted). This Court “must affirm a conviction, if, after
viewing the evidence and all reasonable inferences in the light most favorable
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to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. (quoting United States
v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc)).
1. 26 U.S.C. § 7201
Section 7201 provides that “[a]ny person who willfully attempts in any
manner to evade or defeat any tax imposed by this title or the payment thereof
shall . . . be guilty of a felony.” 26 U.S.C. § 7201. The elements of a § 7201
violation are: “(1) existence of a tax deficiency; (2) an affirmative act
constituting an evasion or an attempted evasion of the tax; and (3) willfulness.”
United States v. Miller, 588 F.3d 897, 907 (5th Cir. 2009) (citing United States
v. Nolen, 472 F.3d 362, 377 (5th Cir. 2006)). Sertich contests whether the
evidence adequately demonstrated that he willfully violated the statute.
“Willfulness” requires “that the law imposed a duty on the defendant,
that the defendant knew of this duty, and that he voluntarily and intentionally
violated that duty.” Cheek v. United States, 498 U.S. 192, 201 (1991). Evidence
of willfulness “is usually circumstantial.” United States v. Miller, 520 F.3d 504,
509 (5th Cir. 2008) (quoting United States v. Bishop, 264 F.3d 535, 550 (5th
Cir. 2001)). Willfulness may be established by, inter alia, “any conduct, the
likely effect of which would be to mislead or to conceal.” United States v. Kim,
884 F.2d 189, 192 (5th Cir. 1989) (quoting Spies v. United States, 317 U.S. 492,
499 (1943)). In federal tax law, “a defendant’s good-faith belief that he is acting
within the law negates the willfulness element.” United States v. Simkanin,
420 F.3d 397, 410 (5th Cir. 2005).
Sertich contends that he did not act willfully because he testified that
“he held a good faith belief that he did not violate any criminal laws,” that “he
had no idea it was a crime to delay paying his payroll taxes,” and he believed
he was receiving a “loan” from the IRS, which “he intended to repay” with
interest. He also asserts that his tax “consultants had ample opportunity to
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correct [his] misunderstanding of the law, yet did nothing to correct it,” and
that the Government’s own witnesses acknowledged that “Sertich had the
intent to pay his tax obligations at all relevant times.”
The Government asserts, however, that the evidence presented was
sufficient to convict him of willfully violating § 7201. The Government
articulates that “Sertich ignored and avoided revenue officers seeking to
contact him about his tax obligations.” The Government argues that Sertich
filed for bankruptcy when he could no longer avoid the IRS agents’ attempts to
collect on his tax obligations. Sertich filed three bankruptcies between 2004
and 2010, which allowed him to halt collections, though his tax delinquency
increased with each bankruptcy because he failed to make the required
payments toward his debts. The Government contends that the “jury was
entitled to infer from this pattern of conduct that Sertich was affirmatively and
willfully evading the payment of his tax deficiencies.”
We agree with the Government. Viewing the evidence in a light most
favorable to the Government and drawing all reasonable inferences in favor of
the verdict, any rational trier of fact could have found a violation of § 7201
beyond a reasonable doubt. See Grant, 850 F.3d at 219. The evidence
established that Sertich had repeated interactions with the IRS as to his taxes
due and owing. The evidence also demonstrated that Sertich repeatedly filed
for bankruptcy, causing the IRS to cease its collection attempts and release
levies on his bank accounts. These bankruptcy filings were often dismissed
because Sertich failed to make the required payments, and his tax debt
increased with each filing. From this pattern of conduct, the jury could infer
that Sertich knew he had a duty to pay his taxes, yet he voluntarily and
intentionally evaded payment. See Cheek, 498 U.S. at 201–02.
Other evidence from trial also supports this conclusion. The evidence
demonstrated that Sertich claimed credit against his personal tax liabilities
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for the purportedly withheld amounts. See United States v. Coney, 689 F.3d
365, 376 (5th Cir. 2012) (“It is also undisputed that [defendant] demonstrated
his knowledge of [his] duty by filing tax returns for the relevant years that
expressly acknowledged his outstanding tax liabilities.”). The evidence also
showed that Sertich used cashier’s checks at times to pay his staff instead of
using checks from a business account; this allowed him to avoid having money
in a bank account that the IRS could access. See United States v. Wisenbaker,
14 F.3d 1022, 1025 (5th Cir. 1994) (noting that willfulness can be shown by
evasive acts intended to conceal finances, like dealing in cash).
Sertich attempts to claim he did not willfully violate § 7201 because he
lacked the funds to meet his tax obligations. Even if financial inability to pay
were a viable defense to tax offenses, but see Tucker, 686 F.2d at 233, the record
reflects that Setrich’s inability to pay resulted from his decision to utilize
withheld funds for personal use and to “maintain a lifestyle.” See United States
v. Van Meter, 280 F. App’x 394, 396–97 (5th Cir. 2008) (finding sufficient
evidence of willfulness where trial evidence demonstrated defendant used
assets for personal use to “live an extremely comfortable lifestyle”). Sertich’s
suggestion that he did not willfully violate § 7201 because he was forthcoming
in his filings and interactions with the IRS similarly cannot save him. Section
7201 does not require proof that the defendant was uncooperative; it requires
only that a defendant willfully try to evade or defeat the payment of a tax
through an affirmative act. See Miller, 588 F.3d at 907; Kawashima v. Holder,
565 U.S. 478, 487–88 (2012) (noting that tax evasion under § 7201 does not
depend on fraud or deceit). Furthermore, the jury was entitled to disbelieve
Sertich’s contention that he had a good faith belief he was not committing any
crime, and in any event, the trial evidence that the IRS and Sertich’s own
agents warned him cuts against that suggestion. See Cheek, 498 U.S. at 202
(“Of course, in deciding whether to credit Cheek’s good-faith belief claim, the
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jury would be free to consider any admissible evidence from any source
showing that Cheek was aware of his duty to file a return and to treat wages
as income . . . .”); United States v. Kellar, 394 F. App’x 158, 166 (5th Cir. 2010)
(finding evidence of willfulness when, inter alia, the IRs warned the defendant
“on several occasions about the consequences of his failure to file tax returns
or pay his taxes”).
Accordingly, the evidence was sufficient for a reasonable juror to find a
violation beyond a reasonable doubt, and we affirm Sertich’s conviction
pursuant to § 7201.
2. 26 U.S.C. § 7202
Section 7202 provides that any person who “willfully fails to collect or
truthfully account for and pay over” the requisite taxes shall “be guilty of a
felony.” 26 U.S.C. § 7202. As we have just held, a defendant violates § 7202 if
he willfully fails to either truthfully account for taxes or pay them over. A
defendant acts willfully when he voluntarily and intentionally violates a
known duty. Cheek, 498 U.S. at 201. Like his challenge to § 7201, Sertich
argues that the evidence did not adequately demonstrate that he willfully
acted under § 7202. More specifically, Sertich asserts that he had a good faith
belief that he was not committing a crime and instead was receiving a “loan”
from the IRS.
The Government contests this, pointing to the fact that the evidence
showed that “Sertich’s accountants repeatedly told him that he could not retain
and spend amounts withheld from employee pay, but instead needed to turn
those amounts over to the federal government.” The Government asserts that
Sertich’s “pattern of conduct” of remitting little or none of the amounts he
withheld, “despite his accountants’ and the revenue officer’s advice, support[s]
the inference that Sertich knew of his legal duty but voluntarily and
intentionally violated it.”
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Sertich’s challenge to the evidence underlying his § 7202 conviction thus
turns on a credibility determination: one between his version of why he did not
pay over taxes withheld (because of his belief he was receiving a “loan” from
the IRS) and the considerable amount of evidence presented by the
Government that he knew of his tax obligations and willfully failed to comply
with them. See United States v. Zuniga, 18 F.3d 1254, 1260 (5th Cir. 1994).
Here, the jury had sufficient evidence to find that Sertich acted willfully.
Despite multiple discussions with revenue officers and his own attorneys,
Sertich repeatedly failed to pay over his taxes. The jury apparently did not
believe Sertich’s testimony that he genuinely thought he had received a loan
from the IRS, and “[w]e will not second guess the jury in its choice of which
witnesses to believe.” Zuniga, 18 F.3d at 1260; see also Cheek, 498 U.S. at 202.
Testimony by Sertich’s accountants also undermines his contention that he
was unaware of his legal duties. Two accountants testified that they advised
Sertich “on a regular basis” that taxes were “due and owing,” that “[he] need[s]
to make the deposits,” and that “this has to be paid.” One accountant even
challenged Sertich’s loan theory and told him “[y]ou’re going to need to get this
paid timely, and it’s going to become an issue.” These conversations with his
accountants demonstrated Sertich’s willfulness. See United States v. Smith, 3
F.3d 436, *3–4 (5th Cir. 1993) (noting that defendant’s disregard for
accountants’ warnings, inter alia, was evidence of willful intent to conceal).
Because we find that any rational trier of fact could have found beyond
a reasonable doubt that Sertich violated § 7202, we affirm Sertich’s conviction.
III. CONCLUSION
For the foregoing reasons, we AFFIRM.
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