United States v. Gary Pansier ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3771
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
G ARY L. P ANSIER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05-CR-272—Charles N. Clevert, Jr., Judge.
A RGUED S EPTEMBER 9, 2008—D ECIDED A UGUST 12, 2009
Before F LAUM, W ILLIAMS, and SYKES, Circuit Judges.
W ILLIAMS, Circuit Judge. Gary Pansier, a tax protester,
did not pay his taxes for many years. When federal, state,
and local revenue agents attempted to collect his delin-
quent taxes, Pansier responded by requesting personal
information from the individual agents and filing
false forms with the Internal Revenue Service (“IRS”),
claiming that the individual revenue agents had been
involved in large cash transactions on his behalf. He
2 No. 07-3771
also attempted to satisfy his various tax debts with
phony sight drafts, a type of financial instrument, which
appeared to be drawn on a Treasury Direct account and
issued under the authority of United States Department
of Treasury. For his behavior, Pansier was convicted of
obstructing the administration of the IRS, filing false
IRS forms, and passing phony financial instruments
with the intent to defraud.
On appeal, Pansier raises a number of challenges to his
convictions, but we are not persuaded by any of them.
Because we conclude that the district court was
permitted to exclude at least thirty days to resolve
multiple pretrial motions, the delays in Pansier’s trial did
not violate the Speedy Trial Act. The language of Count
One of the indictment reveals that the count was not
duplicitous and charged Pansier only with obstructing
the due administration of the IRS under the omnibus
clause of 26 U.S.C. § 7212(a). We further conclude that it
is not an element of 26 U.S.C. § 7206(1), a perjury statute,
that the false document passed was required to be filed
by statute or regulation. Therefore, Counts Two through
Nine of the indictment alleged all the necessary elements
of the offense. And finally, the district court properly
considered both the qualifications and the reliability of
the government’s expert witness and did not err in the
admission of his testimony. We therefore affirm the
judgment of the district court.
I. BACKGROUND
Pansier and his wife refused to pay income and property
taxes for many years. As a result, the IRS, the Wisconsin
No. 07-3771 3
Department of Revenue, and the Treasurer’s Office of
Marinette County each sent the Pansiers notice of their
tax delinquencies. Pansier responded to these notices by
returning them to the relevant taxing authority stamped
with the words “accepted for value and exempt from
levy.” He also attached an IRS W-9 form, requesting
personal information, including social security numbers
and dates of birth, from the individual employees and
state officials attempting collections. In each instance,
when he received no response from the individual em-
ployee, Pansier filed a “Form 8300,” an IRS form used
to report cash payments over $10,000 received in one
transaction or two or more related transactions, see 26
U.S.C. § 6050I. On each form, he falsely reported that the
individual employee had made a cash payment on his
behalf and had refused to provide a social security
number or date of birth. Pansier also checked the “amends
prior report” box as well as the “suspicious transaction”
box, which is used to note that the individual is with-
holding information or attempting to prevent the form
from being filed. See IRS Form 8300, http://www.irs.gov/
pub/irs-pdf/f8300.pdf.
Among those individuals named by Pansier in the
false Form 8300’s were two employees of the Wisconsin
Department of Revenue; the Treasurer of Marinette
County, Wisconsin; the Secretary of Revenue for the State
of Wisconsin; Judge William M. Atkinson of the Brown
County, Wisconsin Circuit Court; and an IRS revenue
officer assigned to Pansier’s case. After receiving the
false forms, the IRS entered each one into its database
and sent notices to the individuals, requesting that they
4 No. 07-3771
provide the missing information and informing them of
potential penalties if they failed to respond. Once the
IRS investigated further, it discovered that the forms
were false and removed all the entries from its database.
Next, in an attempt to dodge his tax bills, Pansier
submitted as payment for taxes he owed to the IRS, the
Wisconsin Department of Revenue, and Marinette
County, phony financial instruments, which appeared to
be sight drafts issued under the authority of the United
States Department of Treasury. Sight drafts are financial
instruments that are payable at the bearer’s demand or
on presentment to the drawer. Black’s Law Dictionary
530 (8th ed. 2004). The sight drafts included a purported
Treasury Direct routing number, listed Pansier’s social
security number as the Treasury Direct account number,
and directed the recipient to seek payment from Pansier’s
Treasury Direct account. But Pansier did not have a
Treasury Direct account, which is only an investment
account that is administered by the United States
Treasury Department’s Bureau of Public Debt and cannot
be used to pay third parties. See Treasury Direct,
h t t p : / / w w w .t r e a s u r y d i r e c t . g o v / i n d i v / m y a c c o u n t /
myaccount.htm#TreasuryDirect. When the IRS received
these phony sight drafts, it initially credited Pansier’s
account and attempted to present them for payment at
several banks where they were dishonored.
In November 2005, a grand jury returned a 31-count
indictment against Pansier, charging him with one count
of obstructing the due administration of the IRS, see 26
U.S.C. § 7212(a); eight counts of filing under penalty of
No. 07-3771 5
perjury false IRS Form 8300’s, see 26 U.S.C. § 7206(1); and
twenty-two counts of fraudulently passing fictitious
financial instruments, appearing to be issued under the
authority of the United States, see 18 U.S.C. § 514(a)(2).
Pansier made his initial appearance at an arraignment
on January 27, 2006. Because Pansier argues that his
trial was impermissibly delayed in violation of the
Speedy Trial Act, we provide a detailed description of the
procedural history of the case and the relevant dates
following his initial appearance.
Pansier initially opted to proceed pro se and filed
numerous pretrial motions, some of which were incom-
prehensible or irrelevant, while others, including multiple
motions to dismiss the indictment, discovery motions,
and a motion for a bill of particulars, arguably presented
substantive issues. The government filed a motion for
handwriting exemplars and one motion in limine. Judge
William Griesbach ruled on many of these motions and
denied Pansier’s various motions to dismiss.
At the final pretrial conference, Judge Griesbach dis-
closed that one of the government’s witnesses, Wisconsin
Circuit Court Judge William Atkinson, is his former
colleague and a friend. Nevertheless, at that time, Judge
Griesbach concluded that he could remain impartial,
and neither party objected. Pansier waived his right to
a jury, and the case proceeded to trial.
In August 2006, Judge Griesbach found Pansier guilty of
Counts One through Nine but reserved his ruling on the
remaining counts pending the parties’ post-trial briefs.
Several weeks later, however, Judge Griesbach issued an
6 No. 07-3771
order in which he again informed the parties of his rela-
tionship with Judge Atkinson, and this time he
invited them to move for his disqualification based on
the possibility of an appearance of impropriety. Pansier
accepted this invitation, and, consequently, in an order
dated October 10, 2006, Judge Griesbach recused himself
and vacated all his previous orders and findings in the
case.
The case was reassigned to Judge Charles N. Clevert, Jr.
Neither party filed anything until two months later
when, on December 13, 2006, Pansier sought a clarifica-
tion and modification of his conditions of release. On
December 26, the government moved to revoke Pansier’s
bond. The district court set a hearing date for the motion.
In the meantime, Pansier moved to dismiss the charges
based on an alleged violation of the Speedy Trial Act. On
January 26, 2007, the court revoked Pansier’s bond and
denied his Speedy Trial Act motion, finding that the
numerous pretrial motions that had been filed before
Judge Griesbach’s recusal had been revived and were
still pending. As a result, the court determined that the
speedy trial clock was tolled. On February 9 Pansier
filed the first in another series of pro se motions, and on
February 22, the district court ruled on nine motions
that had been filed before Judge Griesbach’s recusal, as
well as three motions that had been filed after the
recusal, and ordered briefing on four outstanding
motions, two of which had been filed before Judge
Griesbach.
In March 2007, Pansier retained an attorney and, through
counsel, filed four motions: (1) a motion to dismiss
No. 07-3771 7
Count One of the indictment as duplicitous; (2) a motion
to dismiss Counts Two through Nine of the indictment
for failure to allege all the necessary elements of the crime;
(3) a motion to dismiss the indictment based on pre-
indictment delay; and (4) a renewed motion to dismiss
for violation of the Speedy Trial Act. The court denied
each of these motions.
The case again proceeded to trial, this time before a jury.
The government argued that Pansier had obstructed the
due administration of the IRS by submitting the false
Form 8300’s, knowing that by checking the “amends
prior report” and “suspicious transaction” boxes, the IRS
would be sent on a wild goose chase, investigating the
fictional transactions and, after discovering that no trans-
actions had occurred, would be required to remove the
false information in the IRS database. He further ob-
structed the administration of the IRS, the government
argued, by submitting the fictitious sight drafts as pay-
ment for his federal taxes, knowing that, even if the drafts
were not accepted as legitimate, the IRS would expend
resources in attempting to process the drafts for pay-
ment. Counts Two through Nine reflected eight
individual Form 8300’s filed with the IRS, which, the
government contended, Pansier signed under penalty of
perjury, despite his knowledge that they were false as to
a material matter, the very transaction reported. Finally,
the government dismissed Counts Ten and Twenty-
Seven but proceeded on the remaining counts, which
all related to individual sight drafts that Pansier sub-
mitted, as the government contended, knowing them to
be fictitious and appearing to be drawn under the author-
8 No. 07-3771
ity of the United States, with intent to defraud the
various taxing authorities.
In support of these counts, the government presented
the testimony of fourteen witnesses, including a number
of individuals whom Pansier had named in the Form
8300’s, several individuals who had received and at-
tempted to process the fictitious sight drafts, and William
Kerr, a bank examiner with the Office of the Comptroller
of the Currency whom the court qualified as an expert
witness over Pansier’s objection. Kerr testified that the
sight drafts submitted by Pansier were worthless finan-
cial instruments purportedly drawn upon a Treasury
Direct account at the Treasury Department.
The jury found Pansier guilty of Counts One through
Nine, Eighteen through Twenty-Six, and Twenty-Eight
through Thirty, but acquitted him of Counts Eleven
through Seventeen. The jury was hung on Count Thirty-
One, and, as a result, the government dismissed the
count. The district court sentenced Pansier to twenty-
four months’ imprisonment for each count, with the
terms to run concurrently. This appeal followed.
II. ANALYSIS
A. There was no Speedy Trial Act violation.
Pansier first argues that the district court erred in
denying his motion to dismiss the case under the Speedy
Trial Act, 18 U.S.C. § 3161. The Speedy Trial Act provides
that no more than seventy days may pass between
a defendant’s initial appearance in court and the com-
No. 07-3771 9
mencement of trial. 18 U.S.C. § 3161(c)(1); United States v.
Harris, 567 F.3d 846, 849 (7th Cir. 2009). The Act further
provides, as relevant here, that “[i]f the defendant is to
be tried again . . . following an order of [a trial] judge for
a new trial,” the speedy trial clock is reset and the new
trial must begin within seventy days “from the date the
action occasioning the retrial becomes final.” 18 U.S.C.
§ 3161(e).
Indeed, Pansier’s second trial commenced more than
seventy days after Judge Griesbach’s recusal order.
In calculating the speedy trial clock, however, the Act
specifically excludes the time from the filing of any
pretrial motion until the hearing on that motion, 18
U.S.C. § 3161(h)(1)(D)1 ; Henderson v. United States,
476 U.S. 321, 328-29 (1986), as well as the time after the
hearing until the district court receives the last filing it
expects to receive on the motion, Henderson, 476 U.S. at 331;
United States v. Pedroza, 269 F.3d 821, 829 (7th Cir. 2001).2
1
The Speedy Trial Act was amended effective October 13,
2008. See Pub. L. 110-406, § 13 (2008), 122 Stat. 4291. That
amendment eliminated two provisions under 18 U.S.C.
§ 3161(h)(1) and redesignated two provisions relevant to
this appeal without substantive change: the provision that
previously appeared at § 3161(h)(1)(F) is now found at
§ 3161(h)(1)(D), and the provision that previously appeared at
§ 3161(h)(1)(J) is now found at § 3161(h)(1)(H). We refer to
the relevant provisions as amended.
2
We note that the Supreme Court recently granted certiorari in
United States v. Bloate, 534 F.3d 893 (8th Cir. 2008), cert. granted
(continued...)
10 No. 07-3771
The Act further excludes a maximum of thirty days after
that last filing, during which a motion “is actually under
advisement by the court,” 18 U.S.C. § 3161(h)(1)(H); see
Henderson, 476 U.S. at 329; Pedroza, 269 F.3d at 829-30.
When a court is called upon to decide multiple motions,
however, that period of advisement may be extended
beyond thirty days as long as the court resolves the
pending motions with “reasonable promptness.” Pedroza,
269 F.3d at 830; United States v. Salerno, 108 F.3d 730, 737
(7th Cir. 1997); United States v. Tibboel, 753 F.2d 608, 612
(7th Cir. 1985).
The district court concluded that the Speedy Trial Act
had not been violated because Judge Griesbach’s
recusal order, vacating all of his previous orders, in-
cluding the convictions on Counts One through Nine,
reset the speedy trial clock under 18 U.S.C. § 3161(e). The
recusal order also revived all pretrial motions on which
Judge Griesbach had ruled, and, the court explained,
approximately thirteen motions were revived at the time
of his recusal. So, additional time was excluded until the
resolution of those motions, and, the court calculated, no
more than fifty-nine days elapsed from the speedy trial
clock before the case went to trial.
2
(...continued)
129 S. Ct. 1984 (2009), to consider whether time allowed for the
preparation of pretrial motions is also excludable under
18 U.S.C. § 3161(h)(1). Neither party, though, has argued that
any time was excludable during the preparation of pretrial
motions.
No. 07-3771 11
We review the district court’s denial of Pansier’s
speedy trial motion de novo. United States v. Farmer, 543
F.3d 363, 368 (7th Cir. 2008). Pansier raises two chal-
lenges to the court’s speedy trial clock calculation. First,
he argues that the speedy trial clock was not reset
under § 3161(e) because when Judge Griesbach recused
himself, he did not also order a new trial. Pansier relies
on United States v. Crooks, 804 F.2d 1441, 1445 (9th Cir.
1986), for the proposition that only an order setting
the case for retrial triggers § 3161(e) and resets the
clock with a fresh seventy days.
Pansier reads Crooks too broadly. In that case, the
Ninth Circuit stated that the district court’s order setting
the case for retrial, and “not the dismissal of the jury,
constituted the action occasioning the new trial.” Crooks,
804 F.2d at 1445. But the Ninth Circuit later revised
its holding in that case, refusing to apply § 3161(e) in
such a narrow fashion. Rather, the court explained that
the Act’s “reference to trial following an order for ‘new
trial’ refers to the granting of a motion for new trial or
its equivalent, which would upset a verdict of conviction
and occasion a new trial.” United States v. Pitner, 307 F.3d
1178, 1182 n.3 (9th Cir. 2002) (emphasis added).
Similarly, in this case, Judge Griesbach’s order granting
Pansier’s motion for recusal and vacating the convic-
tions on Counts One through Nine is the equivalent of a
motion for new trial. That order upset the verdict of
conviction and was the “action occasioning the retrial”
within the meaning of the Act. See 18 U.S.C. § 3161(e).
Moreover, Judge Griesbach’s recusal order vacated his
prior rulings on the numerous pretrial motions, thereby
12 No. 07-3771
reviving those motions, and nothing in the language
of § 3161(e) requires otherwise.
Pansier also takes issue with the district court’s ex-
clusion of thirty days under § 3161(h)(1)(H) because, he
contends, there is no evidence that the various pro se
motions that were revived following recusal were
actually “under advisement” in the two months fol-
lowing Judge Griesbach’s recusal. He further argues that
those motions were simply “nonsensical discovery mo-
tions” that were obviously meritless. Therefore, Pansier
asserts that no time should be excluded for the
multiple pretrial motions that were pending immedi-
ately after the order of recusal.
Although Pansier is correct that the docket reveals no
activity immediately following Judge Griesbach’s
recusal, we are not persuaded that § 3161(h)(1)(H)
requires the close factual inquiry that Pansier suggests
to determine whether a motion was under advisement.
Pansier relies on language in United States v. Johnson, 29
F.3d 940, 943 n.3 (5th Cir. 1994), which states that “a
court must look more closely into the particular circum-
stances of that motion, e.g., whether there was a hearing
on the motion, or whether the motion was taken under
advisement, to determine whether certain days are
excludable.” But in making that statement, the Fifth
Circuit was simply distinguishing between the number
of days that may be excluded in the case of a motion
requiring a hearing and the number of excludable days
for a motion that does not require a hearing and is
simply taken under advisement. See Johnson, 29 F.3d at
No. 07-3771 13
943. And when no hearing is required, a motion is con-
sidered to be “actually under advisement” when the trial
court receives all the papers it expects to receive re-
garding that motion. Henderson, 476 U.S. at 329; United
States v. Hemmings, 258 F.3d 587, 593-94 (7th Cir. 2001);
Johnson, 29 F.3d at 943. Here, the parties had already fully
briefed many of the pending motions and the court ex-
pected no further filings on those motions immediately
following recusal. Judge Clevert was therefore entitled
to a new period of advisement in which to review those
motions under § 3161(h)(1)(H). The question we must
answer then, is whether the district court resolved
those motions with “reasonable promptness.” See e.g.,
Pedroza, 269 F.3d at 830; United States v. Cheek, 3 F.3d
1057, 1067 (7th Cir. 1993).
In calculating the speedy trial clock, starting on
October 11, 2006 until trial, the periods of time from
December 26 through January 27 and February 8 until
the trial began on June 18, 2007, were properly excluded
under the Act, as Pansier concedes. That leaves eighty-
nine days in dispute, from October 11 through Decem-
ber 25, 2006 and January 28 through February 8, 2007,
during which the parties’ multiple pretrial motions re-
mained pending.
We do not measure reasonable promptness by a mathe-
matically precise standard, Pedroza, 269 F.3d at 830-31, but
we have previously held that the standard was met when
a trial court decided four motions in fifty-one days, id.;
seven motions in forty-two days, Tibboel, 753 F.2d at 612,
eight motions in sixty-eight days, United States v. Latham,
14 No. 07-3771
754 F.2d 747, 753 (7th Cir. 1985); and twenty-four
motions in fifty days, Cheek, 3 F.3d at 1067. At least
thirteen motions were revived and pending after the
recusal order, including a motion in limine and a motion
for handwriting exemplars filed by the government.
And although several of Pansier’s pro se filings may not
have required any action by the district court, see United
States v. Williams, 511 F.3d 1044, 1052-53 (10th Cir. 2007)
(refusing to exclude any time for a pro forma discovery
motion that required no action by the court), Pansier
filed four motions to dismiss the indictment, a motion
for a bill of particulars, and multiple discovery motions.
We need not decide, however, what amount of time
constitutes reasonable promptness in deciding thirteen
motions of this varied nature because, even excluding a
mere thirty days, which would be reasonable for just
one motion, only fifty-nine days elapsed from the
speedy trial clock. Therefore, we find that the district
court satisfied the Speedy Trial Act’s 70-day deadline.
B. Count One is not duplicitous.
Next Pansier challenges his conviction for obstructing
the due administration of the IRS, contending that Count
One of the indictment is duplicitous. An indictment is
duplicitous if it charges two or more offenses in a single
count. United States v. Starks, 472 F.3d 466, 470 (7th Cir.
2006). Duplicity creates a risk that the jury might return
a less than unanimous guilty verdict, potentially exposes
the defendant to prejudice at trial and sentencing, and
in some cases subjects the defendant to double jeopardy.
No. 07-3771 15
United States v. Davis, 471 F.3d 783, 790 (7th Cir. 2006). The
district court denied Pansier’s motion to dismiss Count
One as duplicitous, a ruling that we review de novo.
Starks, 472 F.3d at 468.
The statute at issue in Count One, 26 U.S.C. § 7212(a),
states that an individual may be prosecuted if he or she:
[C]orruptly or by force or threats of force (includ-
ing any threatening letter or communication)
endeavors to intimidate or impede any officer or
employee of the United States acting in an official
capacity under this title, or in any other way
corruptly or by force or threats of force (including
any threatening letter or communication) obstructs
or impedes, or endeavors to obstruct or impede,
the due administration of this title.
This provision contains two distinct clauses, which each
describe a separate offense. United States v. Lovern, 293
F.3d 695, 700 & n.5 (4th Cir. 2002); United States v. Kassouf,
144 F.3d 952, 955 (6th Cir. 1998). The first clause
prohibits specific threats against an officer or employee
of the United States designed to intimidate or impede
that officer’s administration of the tax code, while the
second clause, the so-called “omnibus clause,” is aimed at
all other activities which may obstruct or impede the
administration of the code. Lovern, 293 F.3d at 700 & n.5;
United States v. Bowman, 173 F.3d 595, 598 (6th Cir. 1999);
United States v. Kelly, 147 F.3d 172, 175 (2d Cir. 1998).
Here, Count One of the indictment returned by the
grand jury alleges that Pansier “corruptly endeavored to
obstruct and impede the due administration” of IRS laws
16 No. 07-3771
by filing with the IRS “false Forms 8300, and fictitious
financial instruments referred to as Sight Drafts. The
defendant thereby used the IRS as a tool of retaliation
against public employees for the lawful performance of
their official duties. He filed the fictitious financial instru-
ments in order to satisfy federal tax, interest and penalties
due and owing as assessed against either himself and/or
his wife.” The count consists of six paragraphs, three of
which describe the false Form 8300’s that Pansier filed
and state that “[i]n retaliation,” Pansier reported on the
forms that federal and state employees had made pay-
ments on his behalf, causing the IRS to process the
forms and send notices to the employees. In the final
paragraph the count alleges that “[i]n a further effort to
obstruct and impede the due administration of the
Internal Revenue laws” Pansier “filed with the IRS Sight
Drafts as purported payment.” Before trial, however, the
district court struck from Count One all allegations of
retaliation as a motive for the false forms, and the jury
received the revised indictment absent any references
to retaliation.
Pansier argues that the references in the original indict-
ment to retaliation against public officials charge him
with violating the first clause of 26 U.S.C. § 7212(a), while
the references to the fictitious sight drafts charge him
with violating the omnibus clause of that statute. And
alternatively, Pansier argues, the indictment was con-
structively amended when the district court struck the
references to retaliation from Count One but later permit-
ted the government to present evidence that he retali-
ated against various public employees.
No. 07-3771 17
Pansier’s reliance on the indictment’s references to
retaliation is misplaced. The language of Count One tracks
the statutory language of the omnibus clause of 26 U.S.C.
§ 7212(a) and states that his actions in filing the Form
8300’s and the fictitious sight drafts were intended to
obstruct the due administration of the code. There is no
allegation that the Form 8300’s were intended to
intimidate or impede individual federal tax officers, a
required element of the statute’s first clause, see Kassouf,
144 F.3d at 955, and the relevant paragraphs explain
that the Form 8300’s named both federal and state
officials—the latter of which are relevant only for the
omnibus clause of § 7212(a). We conclude then that the
indictment charges only a violation of the omnibus
clause of § 7212(a) and is not duplicitous.
Moreover, even if we were to assume that the indict-
ment is duplicitous, Pansier fails to identify any prejudice
that this may have caused him. See Starks, 472 F.3d at 471.
There was no risk of a non-unanimous verdict because
the jury received the revised indictment absent any
reference to retaliation, and, accordingly, as instructed, the
jury could only find Pansier guilty of Count One by
finding that he “corruptly endeavored to obstruct or
impede the due administration of the internal revenue
laws,” and that he “did so knowingly and intentionally.”
Nor was there a constructive amendment of the indict-
ment. “Constructive amendment of an indictment occurs
where the permissible bases for conviction are broadened
beyond those presented to the grand jury.” United States v.
Blanchard, 542 F.3d 1133, 1143 (7th Cir. 2008). Pansier
18 No. 07-3771
argues that the government presented evidence of retalia-
tion against public employees and that the court erred
in striking all references to retaliation from the indict-
ment. But the government simply presented evidence
relevant to the Form 8300’s and did not pursue a theory of
intimidation at trial. And, rather than adding additional
bases for conviction, the court removed only non-essential
language from the indictment, properly ensuring that
there could be no confusion as to the factual basis for the
charge. See United States v. Alhalabi, 443 F.3d 605, 613-14
(7th Cir. 2006) (finding no error where court struck from
the indictment only information that was immaterial to
the crime charged).
C. Counts Two through Nine were sufficiently charged.
An indictment must state all the elements of the crime
charged. United States v. Moore, 563 F.3d 583, 585 (7th Cir.
2009). In his next attack on the indictment, Pansier argues
that Counts Two through Nine, which alleged that he
willfully made and subscribed false statements on the
Form 8300’s in violation of 26 U.S.C. § 7206(1), were
defectively charged. Section 7206(1) is violated when a
person “[w]illfully makes and subscribes any return,
statement, or other document, which contains or is
verified by a written declaration that it is made under
the penalties of perjury, and which he does not believe
to be true and correct as to every material matter.” 26
U.S.C. § 7206(1). Pansier argues that the government
failed to allege in the indictment or prove at trial what he
contends is an element of the crime: that IRS code or
No. 07-3771 19
regulation requires the Form 8300’s to be filed. Without
this element, Pansier argues, the government cannot
show that the information contained in the Form 8300
was false as to a “material matter.” In support of this
contention, he relies on United States v. Levy, 533 F.2d 969,
975 (5th Cir. 1976), for the proposition that a form not
required by statute or regulation cannot be the basis of
an offense under § 7206(1).
We are not persuaded by this argument. Section 7206(1)
is a perjury statute, United States v. Scholl, 166 F.3d 964, 980
(9th Cir. 1999), and therefore “requires only that the
taxpayer file a return ‘which he does not believe to be
true and correct as to every material matter,’ ” United
States v. Peters, 153 F.3d 445, 461 (7th Cir. 1998)
(quoting § 7206(1)); see United States v. Presbitero, 569
F.3d 691, 700 (7th Cir. 2009); United States v. Murphy, 469
F.3d 1130, 1137-38 (7th Cir. 2006) (distinguishing between
26 U.S.C. § 7206, which prohibits the willful filing of
false documents, and 26 U.S.C. § 7203, which prohibits
the willful refusal to file a tax return if required to do so).
Moreover, the Sixth Circuit has more recently considered
and rejected this same argument in a similar case. See
United States v. Anderson, 353 F.3d 490, 498-500 (6th Cir.
2003) (superceded by statute on other grounds as recog-
nized in United States v. McBride, 362 F.3d 360, 374 (6th Cir.
2004)). In Anderson the defendants filed numerous false
Form 8300’s reporting nonexistent transactions with
judicial officers, police, and attorneys, and as a result, were
convicted of violating § 7206(1). Id. at 497-98. In chal-
lenging their convictions, the defendants argued that the
20 No. 07-3771
government could not establish that the false informa-
tion was material because the reported transactions
never occurred, and, therefore, the defendants con-
tended, they had no duty to file the forms. Id. at 499. The
court rejected this argument, explaining that criminal
penalties for perjury under § 7206 may apply to any
document filed with the IRS. Id. (citing United States v.
Tarwater, 308 F.3d 494, 504 (6th Cir. 2002)). The court
further noted that the general definition of a materially
false statement is a statement that “has ‘a natural
tendency to influence, or [is] capable of influencing, the
decision of the decisionmaking body to which it was
addressed.’ ” Id. (quoting Neder v. United States, 527 U.S. 1,
16 (1999)). Consequently, the court concluded, “proof of
a duty to file a return is not required to establish a viola-
tion of § 7206(1) or (2) for filing reports of nonexistent
transactions.” Id.; see also United States v. Shortt
Accountancy Corp., 785 F.2d 1448, 1454 (9th Cir. 1986)
(“Nothing in the statute or case law indicates that a charge
under section 7206(1) for making and subscribing a
false return is based on the taxpayer’s duty to file or ‘make’
an income tax return.”). Although Pansier relies on our
statement in United States v. Peters, defining a material
statement as one that “has the potential for hindering
the IRS’s efforts to monitor and verify the tax liability” of
the taxpayer, 153 F.3d at 461 (internal quotations omitted),
that definition specifically pertains to a false statement
made within the context of a tax return, see, e.g., Presbitero,
569 F.3d at 700-01. Section 7206(1), however, encompasses
“any return, statement, or other document.” We therefore
agree with the reasoning of the Sixth Circuit and con-
No. 07-3771 21
clude that a statutory or regulatory duty to file the form
is not required to show materiality, nor is it a necessary
element of an offense under § 7206(1).
The indictment here charged that Pansier “willfully
made and subscribed false Forms 8300, ‘Report of Cash
Payments over $10,000 Received in a Trade or Business,’
each of which contained a written declaration that it
was signed under the penalties of perjury and none of
which the defendant believed to be true and correct as
to every material matter.” The indictment, then, stated all
the necessary elements of a charge under § 7206(1). See
Anderson, 353 F.3d at 499; Scholl, 166 F.3d at 979. And the
evidence presented at trial established that Pansier
signed and filed, under penalty of perjury, the Form
8300’s, reporting transactions that he knew to be
false, and that false information led the IRS to initiate
investigations into the reported transactions. This was
sufficient evidence of materiality, see Neder, 527 U.S. at 16;
Anderson, 353 F.3d at 499, and sufficient evidence to
sustain the convictions.
D. The district court correctly applied Daubert and
allowed the expert testimony.
Finally, Pansier challenges the admissibility of William
Kerr’s expert testimony, arguing that the district court
did not properly consider the reliability of Kerr’s testi-
mony as required by Daubert v. Merrell Dow Pharma-
ceuticals, Inc., 509 U.S. 579, 589 (1993). He further argues
that Kerr was not qualified to testify about Treasury
Direct accounts or the Uniform Commercial Code and
22 No. 07-3771
that his testimony about Treasury Direct account
numbers was directly contradicted by that of Donna
Ayers, an employee of the Bureau of Public Debt. Finally,
Pansier argues that the court erred by allowing Kerr
to testify as to ultimate issues involving a legal conclusion.
The admissibility of expert testimony is governed by
Federal Rule of Evidence 702 and the framework estab-
lished by the Supreme Court in Daubert. Winters v. Fru-Con
Inc., 498 F.3d 734, 741 (7th Cir. 2007). Rule 702 allows the
admission of expert testimony if “scientific, technical, or
other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue.”
Fed. R. Evid. 702. The district court, however, must act
as the gatekeeper to ensure that the proffered testimony
is both relevant and reliable. Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 147-49 (1999); Daubert, 509 U.S. at
589; Jenkins v. Bartlett, 487 F.3d 482, 488-89 (7th Cir. 2007).
To determine reliability, the court should consider the
proposed expert’s full range of experience and training,
as well as the methodology used to arrive a particular
conclusion. Smith v. Ford Motor Co., 215 F.3d 713, 718
(7th Cir. 2000). We give the court great latitude in deter-
mining not only how to measure the reliability of the
proposed expert testimony but also whether the testi-
mony is, in fact, reliable, Jenkins, 487 F.3d at 489, but the
court must provide more than just conclusory statements
of admissibility to show that it adequately performed
the Daubert analysis, Naeem v. McKesson Drug Co., 444
F.3d 593, 608 (7th Cir. 2006). We review de novo whether
the court applied the legal framework required under
Rule 702 and Daubert, and we review the court’s decision
No. 07-3771 23
to admit or exclude expert testimony for abuse of dis-
cretion. Kunz v. DeFelice, 538 F.3d 667, 675 (7th Cir. 2008).
Here, Kerr’s testimony established his qualifications as
an expert in legitimate and fictitious financial instru-
ments and banking. The district court responded to
Pansier’s objections as to the reliability of Kerr’s opinions
by directing the government to lay a foundation as to
Kerr’s analysis of the specific documents involved and
only allowed Kerr’s expert testimony after he specifically
testified about his methods for ensuring the reliability of
his analyses. The court, therefore, adequately performed
the Daubert analysis.
Moreover, the fact that Kerr’s testimony touched upon
the Uniform Commercial Code and Treasury Direct
accounts as a part of his overall analysis of the fictitious
financial instruments did not render the testimony inad-
missible. The district court properly permitted the testi-
mony within the context of Kerr’s analysis of the finan-
cial instruments and his expertise in banking. Likewise,
any possible inconsistency with another witness’s testi-
mony about the numbers used to identify a Treasury Direct
account does not mean that Kerr’s testimony was unreli-
able. Although his testimony was that a Treasury Direct
account is identified by the account-holder’s social
security number, while Ayers’s testimony was that the
accounts are identified with a unique account number
but can be retrieved with a social security number, it
was up to the jury to determine the import of any dis-
crepancy as a factual matter. See Chapman v. Maytag Corp.,
297 F.3d 682, 687 (7th Cir. 2002); Smith, 215 F.3d at 718
24 No. 07-3771
(“The soundness of the factual underpinnings of the
expert’s analysis and the correctness of the expert’s
conclusions based on that analysis are factual matters to
be determined by the trier of fact.”).
Finally, an expert may testify about an ultimate issue
to be decided by the jury but must refrain from giving
“an opinion or inference as to whether the defendant
did or did not have the mental state or condition con-
stituting an element of the crime charged or of a defense
thereto.” Fed. R. Evid. 704; see United States v. Chube II, 538
F.3d 693, 700 (7th Cir. 2008); United States v. Blount, 502
F.3d 674, 679 (7th Cir. 2007). Here, Kerr testified as to the
ultimate issues that the sight drafts were fictitious finan-
cial instruments and were purportedly drawn on a Trea-
sury Direct account under the authority of the United
States. See 18 U.S.C. § 514. He did not, however, testify as
to Pansier’s state of mind or his intent to defraud, and the
district court, therefore, did not abuse its discretion in
allowing the testimony. See Blount, 502 F.3d at 679-80.
III. CONCLUSION
For the reasons discussed above, we A FFIRM the judg-
ment of the district court.
8-12-09