United States v. James Pieron, Jr. ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0361n.06
No. 21-2899
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
) Aug 30, 2022
UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
)
) ON APPEAL FROM THE
v.
) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
JAMES D. PIERON, JR., ) DISTRICT OF MICHIGAN
Defendant-Appellant. )
)
Before: KETHLEDGE, BUSH, and NALBANDIAN, Circuit Judges.
KETHLEDGE, Circuit Judge. James Pieron, Jr. challenges his conviction for tax evasion,
arguing among other things that the district court should have instructed the jury regarding the
applicable limitations period for that offense. We conclude that any error on that point was
harmless, and affirm.
I.
Pieron is a United States citizen. From about 1999-2009 he lived in Switzerland, where he
founded a currency-trading company and paid Swiss taxes. Yet Pieron was required to pay United
States income taxes as well. His stepfather, an accountant, told him as much in 2008; and Pieron
later hired American Tax Solutions to help prepare his 2008 and 2009 tax returns. Pieron’s 2008
return said that he owed the government $268,445; the 2009 return said he owed $125,490. Pieron
submitted those returns in January 2011, but did not include payment of the amounts owed.
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The next month, the Internal Revenue Service informed Pieron that he owed even more than his
returns had said: namely, $379,617.86 for 2008 and $166,584.07 for 2009.
Pieron then contacted a CPA, Kim Pavlik, to get a second opinion. She prepared amended
returns showing that Pieron owed $365,082 for 2008 and $74,272 for 2009. In January 2012,
Pieron submitted those amended returns and a proposed installment agreement in which he offered
to pay $1,500 per month to settle his tax liabilities. (At that rate, Pieron’s payment schedule would
run more than a quarter-century.) The IRS did not respond to that offer, and Pieron paid $1,500
per month for a total of six months.
In early 2013, based upon new advice from Pavlik, Pieron again amended his returns for
2008 and 2009, this time claiming he owed no taxes at all. Pieron also filed an “Offer to
Compromise—Doubt as to Liability,” in which he offered the IRS $30,000 to resolve his tax
liabilities for 2007, 2008, 2009, 2010, and 2011. The IRS did not respond to that proposal either,
and his taxes remained unpaid.
In 2018, the government indicted Pieron for “willfully attempt[ing] to evade and defeat the
payment of income taxes due and owing by him to the United States of America for the calendar
years 2008 and 2009, by committing affirmative acts of evasion.” See 26 U.S.C. § 7201. Pieron
then paid $870,117.14, the full amount (with penalties and interest) that the government said he
owed. Pieron sent a cover letter with the checks, saying they were “tendered as a cash bond to be
applied to [his] outstanding federal tax liabilities, if any,” for 2008 and 2009.
Meanwhile, the government continued its prosecution. In August 2018, it filed a Bill of
Particulars, which included 19 paragraphs of allegations regarding Pieron’s evasion of his tax
liabilities. The case went to trial, where the government presented extensive evidence that—while
Pieron’s 2008 and 2009 taxes remained unpaid—Pieron moved millions of dollars from his
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personal bank accounts in Switzerland to U.S. companies (like Komplique, Krescent, Navitas, and
IB Tech) that he wholly controlled. Pieron then used funds from those companies to pay for
expensive vehicles and luxury items. After four days of argument and testimony, a jury found
Pieron guilty of willfully attempting to evade his 2008 and 2009 income taxes. The district court
sentenced him to 15 months’ imprisonment. This appeal followed.
II.
A.
Pieron argues that the government presented insufficient evidence to support his
conviction. We review de novo “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Lee, 359 F.3d 412, 418 (6th Cir. 2004).
Tax evasion has three elements: “willfulness; the existence of a tax deficiency; and an
affirmative act constituting evasion or attempted evasion of the tax.” United States v. Heath, 525
F.3d 451, 456 (6th Cir. 2008); see 26 U.S.C. § 7201. Pieron first contends that the government
failed to establish the existence of a tax deficiency for 2008 or 2009, i.e., that he owed any taxes
for those years. That argument is meritless: Pieron’s own initial tax returns for 2008 and 2009,
and his amended returns for those years, along with the trial testimony of Pieron’s own tax
preparers, were basis enough for the jury to conclude that he paid less tax than he owed.
Likewise meritless is Pieron’s contention that the government failed to show that he
committed “an affirmative act constituting evasion or attempted evasion of the tax.” Heath, 525
F.3d at 456 (internal quotation marks omitted). Affirmative acts of evasion include “concealment
of assets” and “any conduct, the likely effect of which would be to mislead or to conceal.” Spies
v. United States, 317 U.S. 492, 499 (1943). The parties here agreed that the relevant statute-of-
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limitations date was January 9, 2012, so the government was required to prove that Pieron
committed an affirmative act of tax evasion after that date.
The government presented evidence of at least three such acts within the limitations period.
First, in August 2012, Pieron submitted a Foreign Bank Account Report in which he told the IRS
that the balance for his JDFX Credit Suisse account had not exceeded $250,000 in 2009. Yet the
government introduced records showing that Pieron transferred almost $750,000 from that same
account to his IB Tech account in November 2009. Second, in January 2012, Pieron submitted
Form 433-F—also known as a collection information statement—in which he told the IRS that his
only assets were $3,500 in two checking accounts, a $25,000 Volkwagen, and a $1,000 interest in
Navitas and also in Komplique. Yet at the same time Pieron was driving a $110,000 Mercedes
that he paid for with Komplique funds and titled in Komplique’s name; and, the month before he
filed the 433-F, Pieron had access to $200,000 in Komplique’s account. Third, two years later,
Pieron traded in that Mercedes for a new one costing $139,000, paid for with funds from a Krescent
account, and titled in Krescent’s name. Yet Pieron’s 433-F for 2014 omitted any mention of
Krescent or the Mercedes. Suffice it to say that we agree with the district court that “the
Government introduced compelling evidence that [Pieron] continued to evade his taxes after
January 9, 2012.”
B.
That same conclusion defeats Pieron’s more serious argument, which is that the district
court should have instructed the jury that it could convict Pieron only if it found that he committed
an evasive act within the five-year limitations period, meaning after January 9, 2012. Most of the
actions alleged in the government’s Bill of Particulars took place before that date; Pieron’s
proposed instruction correctly stated that, “[t]o be guilty of the crime alleged, the defendant must
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have committed an affirmative act of tax evasion after January 9, 2012”; and that instruction likely
would have focused both the jury’s attention and the parties’ presentations at trial. But we
conclude that any error as to the district court’s failure to give the instruction was harmless. See
generally Skilling v. United States, 561 U.S. 358, 414 (2010); Fed. R. Crim. P. 52(a). In closing
arguments, the government emphasized the 433-F forms that Pieron filed in 2012 and 2014. Those
forms, as discussed above, were patently misleading; and Pieron made little effort to persuade the
jury otherwise during trial and particularly during his closing argument. True, in closing
arguments, the government also emphasized several instances of evasive conduct before January
9, 2012. But we see no reason to think that the jury might have overlooked his 2012 and 2014
433-F forms or otherwise found them non-evasive. Moreover, in the context of the trial record as
a whole, the jury had every reason to think that Pieron’s August 2012 Foreign Bank Account
Report (in which he claimed a $250,000 maximum balance for a Swiss account that held $750,000
during the relevant year) was evasive as well. The government has shown by a preponderance of
evidence that the district court’s decision not to give Pieron’s proposed instruction neither affected
nor “substantially swayed” the verdict. See United States v. Kettles, 970 F.3d 637, 643 (6th Cir.
2020). The omission of that instruction therefore does not entitle Pieron to a new trial.
C.
Pieron’s remaining arguments are insubstantial. He argues that his prosecution violated
due process because, he says, the IRS had violated the “Taxpayer Bill of Rights” before then. See
26 U.S.C. § 7803(a)(3). Suffice it to say that Pieron has not identified any legal authority affording
§ 7803(a)(3) constitutional status. Pieron likewise argues that the IRS violated due process when
it failed to follow its own regulations. But he does not identify a single regulation that the IRS
failed to follow. Nor, as to his final argument, has Pieron demonstrated that he suffered any
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prejudice as a result of the government’s mid-trial production of documents relating to his W-
8BEN form. See United States v. Maples, 60 F.3d 244, 247 (6th Cir. 1995); United States v. Word,
806 F.2d 658, 665 (6th Cir. 1986). Pieron made effective use of those documents during cross
examination, and did not request a continuance during trial. See Joseph v. Coyle, 469 F.3d 441,
472 (6th Cir. 2006)
The district court’s judgment is affirmed.
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