United States v. Kenton Tylman ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-2151, 09-2152 & 09-2153
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D EBRA H ILLS, K ENTON T YLMAN,
and B RENT W INTERS,
Defendants-Appellants.
Appeals from the United States District Court
for the Central District of Illinois.
No. 06-CR-20023—Michael M. Mihm, Judge.
A RGUED M AY 18, 2010—D ECIDED A UGUST 18, 2010
Before O’C ONNOR,Œ Associate Justice, and K ANNE and
R OVNER, Circuit Judges.
K ANNE, Circuit Judge. Appellants sold and imple-
mented domestic and international trust packages, which
Œ
The Honorable Sandra Day O’Connor, Associate Justice
(Retired) of the United States Supreme Court, sitting by designa-
tion.
2 Nos. 09-2151, 09-2152 & 09-2153
were used by their clients to conceal income from the
Internal Revenue Service (IRS) and thereby avoid pay-
ment of taxes. A grand jury indicted each of the Appel-
lants with conspiracy to impede the IRS, and also
returned indictments charging Debra Hills and Brent
Winters with filing false income tax returns. After a
joint trial, a jury found Kenton Tylman and Hills guilty
of conspiracy and Hills and Winters guilty of filing
false tax returns. Appellants now appeal various aspects
of their trial and sentencing. We affirm both Tylman’s
and Winters’s convictions. We vacate Hills’s convictions
and remand for further proceedings.
I. B ACKGROUND
The investigation of Appellants first began when an
unrelated organization, Aegis Corporation, caught the
attention of the IRS. Sometime in the late 1990s, the IRS
received a tip that Aegis was promoting a tax evasion
scheme. This tip turned out to be accurate—Aegis was
in the business of selling fraudulent trust packages.
The Aegis scheme was designed so that customers ap-
peared to sell their assets to several trusts when, in
fact, customers never really ceded control of their assets.
This scheme was effectuated by requiring customers
to “purchase” fictitious consulting services when, in
reality, the “payment” for the services was the means
by which the customers initially transferred their assets
into a trust. Then, in most instances, the customers’
assets were diverted through a series of trusts, which were
also referred to as common-law business organizations
Nos. 09-2151, 09-2152 & 09-2153 3
(“CBOs”), until those assets ultimately landed in the
account of an international business company (“IBC”) that
claimed exemption from United States taxation require-
ments. The IBCs then reconveyed the assets to the cus-
tomers under the guise of a gift or a loan, or through
the customers’ use of a debit card tied to the IBC account.
These reconveyed assets were never reported on the
income tax returns of the Aegis customers.
From 1996 through 2000, IRS Special Agent Michael
Priess investigated Aegis. Acting under the pseudonym
“Michael Jordan,” Priess posed as a customer and
attended a number of Aegis seminars that promoted the
trust program. In the mid-1990s, Appellant Kenton
Tylman was working as a salesman for Aegis. It was at
one of these seminars in 1998 where Priess first met
Tylman.
After having success selling the Aegis trusts, in 1999
Tylman started his own company, Worldwide Financial
Services (“WFS”), for the purpose of promoting and
selling Aegis trusts. Appellant Debra Hills was an em-
ployee of WFS and Tylman’s girlfriend. Appellant Brent
Winters was an attorney both at WFS and at a successor
company to WFS, Worldwide Financial & Legal Associa-
tion (“WFLA”). Winters made an unsuccessful bid for
Congress in 1998.
In March of 1999, Priess, suspicious of WFS, arranged
to meet with Tylman, Hills, and others so that he could
receive WFS’s assistance in managing Aegis trusts that
Priess had “purchased” previously. At that meeting,
Priess explained that he had “paid” $290,000 to an Aegis-
4 Nos. 09-2151, 09-2152 & 09-2153
created business under the guise of management services.
He told those present that he had underestimated his
income by $60,000 and that he was hoping to “take care
of” those additional funds, meaning that he wanted to
avoid reporting them as taxable income. Tylman offered
to manage Priess’s Aegis trusts, and also offered tax-
return-preparation services through an Aegis accountant,
who, according to Tylman, would be able to “do some
tax, play games and do some things . . . with [Priess’s
$60,000].” (Tr. 133-34.)
After a year of investigation, in late March 2000, IRS
agents attempted to execute a search warrant at WFS’s
offices. Before they could execute the search, Tylman
and Winters objected on the grounds that the list of
items to be seized was missing from the warrant. Agents
left to procure a new warrant and returned four hours
later with a revised warrant in hand. This time, the
warrant contained a list of items to be seized, but listed
the incorrect location from which the items were to be
seized. When agents realized that they had obtained the
wrong attachment, they left yet again to procure a third
warrant. That evening, agents finally returned with the
correct warrant and executed the search, seizing num-
erous documents and computers.
Six years later, in April 2006, a grand jury indicted
Tylman, Winters, and Hills with conspiracy to impede
the authority of the IRS in violation of 18 U.S.C. § 371.
Hills was also charged with an individual count of tax
fraud based on a tax return she had filed with her then-
husband in 2000. Winters too was charged with an indi-
Nos. 09-2151, 09-2152 & 09-2153 5
vidual count of tax fraud for his 1998 return. These
tax fraud counts were brought under 26 U.S.C. § 7206(1).
Trial did not commence for two years after the indict-
ments were issued because of various continuances,
some sought by Appellants and some sought by the
government. In June 2008, after a five-week trial,
a jury convicted Tylman and Hills of conspiracy, but
acquitted Winters of the conspiracy count. The jury
also convicted Hills and Winters of tax fraud.
On appeal, Appellants argue that the district court
committed various errors, at trial and sentencing. All
three Appellants claim that their statutory and consti-
tutional rights to a speedy trial were violated. They
also complain that the search of WFS’s offices violated
their Fourth Amendment rights.
Winters argues that his conviction for filing a false tax
return was time-barred. He also argues that the prosecu-
tion committed misconduct by offering certain evidence
against him, and that the district court abused its dis-
cretion by admitting that evidence. Winters finally
argues that the district court imposed an improper sen-
tence on him.
Hills argues that there was insufficient evidence to
support her conviction. She also contends that the pros-
ecution committed misconduct during its closing ar-
gument by referring to Hills’s invocation of the Fifth
Amendment. Finally, Hills complains that the district
court abused its discretion in denying her motion to sever.
We take each of these contentions in turn.
6 Nos. 09-2151, 09-2152 & 09-2153
II. A NALYSIS
A. Statutory Right to a Speedy Trial
Appellants argue that they were denied their statutory
right to a speedy trial because numerous continuances
delayed the trial far beyond the seventy-day period
prescribed by the Speedy Trial Act (“STA”), 18 U.S.C.
§ 3161 et seq. We review a district court’s legal interpreta-
tions of the STA de novo, and its discretionary decisions
to exclude time for an abuse of discretion. United States
v. Hemmings, 258 F.3d 587, 591, 593 (7th Cir. 2001). Unless
the district court committed legal error, “exclusions of
time cannot be reversed except when there is an abuse
of discretion by the court and a showing of actual preju-
dice.” United States v. Broadnax, 536 F.3d 695, 698 (7th
Cir. 2008) (emphasis added) (internal quotation marks
omitted).
The STA provides that a defendant must go to trial
within seventy days of either the issuance of an indict-
ment or a defendant’s first appearance before a judicial
officer, whichever is later. 18 U.S.C. § 3161(c)(1). If a
defendant is not brought to trial within that seventy-
day window, the indictment against the defendant must
be dismissed upon the defendant’s motion. § 3162(a)(2).
Dismissal may be with or without prejudice. § 3162(a)(1).
To provide courts with the necessary flexibility to
accommodate pretrial proceedings, however, the STA
provides for certain periods of time to be excluded
from the seventy-day clock. See § 3161(h)(1)-(8). In par-
ticular, the STA requires that certain periods of time
Nos. 09-2151, 09-2152 & 09-2153 7
“shall be excluded . . . in computing the time within
which the trial of such offense must commence.” This
includes “[a]ny period of delay resulting from other
proceedings concerning the defendant, including but
not limited to . . . delay resulting from any pretrial
motion, from the filing of the motion through the con-
clusion of the hearing on, or other prompt disposition
of, such motion . . . .” § 3161(h)(1)(D). Time is auto-
matically excluded under this provision; no showing of
actual delay in trial is required. United States v. Montoya,
827 F.2d 143, 150-51 (7th Cir. 1987).
The STA also permits a district court to exclude time
that results from “a continuance granted by any judge
on his own motion or at the request of the defendant or
his counsel or at the request of an attorney for the Gov-
ernment,” if the judge’s decision to grant the continu-
ance was based on “his findings that the ends of justice
served by taking such action outweigh the best interest
of the public and the defendant in a speedy trial.” 18
U.S.C. § 3161(h)(7)(A). The STA provides a non-exhaus-
tive list of bases upon which an ends-of-justice continu-
ance may be granted, § 3161(h)(7)(B), and for time
to be excludable under this provision, the court must
undertake a timely consideration of the reasons for the
continuance, United States v. Napadow, 596 F.3d 398, 404-
05 (7th Cir. 2010).
Appellants claim that the district court erred in ex-
cluding various days from the STA time-clock. First, they
claim that the sixteen-day period beginning on May 16,
2006, and running through May 31, 2006, should not
8 Nos. 09-2151, 09-2152 & 09-2153
have been excluded because the motion filed by Winters
for a bill of particulars did not actually cause delay in this
case. Although Appellants acknowledge our holding
in United States v. Montoya, 827 F.2d 143, 151 (7th Cir.
1987), where we held that no showing of actual delay
was required to exclude the time spent in resolving
pretrial motions, they urge us instead to adopt the Sixth
Circuit’s recent decision in United States v. Tinklenberg, 579
F.3d 589, 598 (6th Cir. 2009). In Tinklenberg, the Sixth
Circuit held that the plain language of the STA requires
a showing that actual delay resulted from a pretrial
motion for the time spent resolving that motion to be
excludable. Id.We decline Appellants’ invitation to change our prece-
dent. In Montoya, we determined that because § 3161’s
language was ambiguous, we needed to resort to an
examination of the legislative history supporting § 3161’s
enactment to determine whether the filing of a pretrial
motion automatically stops the speedy trial clock or
whether a causal relationship is required for an exclusion.
827 F.2d at 151. We concluded that Congress intended
certain classifications of delay to be excludable automati-
cally, and that, as such, the government need not prove
a causal relationship between the filing of a pretrial
motion and the delay in bringing a defendant to trial. Id.In Tinklenberg, the Sixth Circuit reached the opposite
conclusion, finding that § 3161 was unambiguous on its
face. The court reasoned that because the STA mandates
that a delay must “result from” a pretrial motion, a
causal relationship is required for time to be excludable.
579 F.3d at 598.
Nos. 09-2151, 09-2152 & 09-2153 9
We disagree, as do most of our sister circuits. See, e.g.,
United States v. Green, 508 F.3d 195, 200 (5th Cir. 2007);
United States v. Hood, 469 F.3d 7, 10 (1st Cir. 2006); United
States v. Vo, 413 F.3d 1010, 1015 & n.2 (9th Cir. 2005);
United States v. Vogl, 374 F.3d 976, 985 (10th Cir. 2004);
United States v. Titlbach, 339 F.3d 692, 698 (8th Cir. 2003);
United States v. Dorlouis, 107 F.3d 248, 253-54 (4th Cir.
1997); United States v. Arbelaez, 7 F.3d 344, 347 (3d Cir.
1993); United States v. Wilson, 835 F.2d 1440, 1443 (D.C.
Cir. 1987), abrogated on other grounds by Bloate v. United
States, 130 S. Ct. 1345 (2010); United States v. Stafford, 697
F.2d 1368, 1371-72 (11th Cir. 1983). Because we affirm
the viability of our holding in Montoya, we find that the
district court’s automatic exclusion of the sixteen days
running from May 16 to May 31, 2006, was proper. As
of May 31, 2006, none of the STA’s seventy days were
consumed.
Next, Appellants argue that time was improperly
excluded when Tylman’s counsel filed a motion for a
continuance. It is asserted that because Tylman had a
personal right to a speedy trial, his counsel could not
override his decision to exercise that right. This argu-
ment is without merit.
On June 22, 2006, Tylman’s then-appointed counsel, John
Taylor, filed a motion to continue trial. The motion ex-
plained that Taylor needed more time to review the case
and to discuss the matter with Tylman. He further
stated that the ends of justice would best be served by
allowing him more time to prepare because adequate
preparation time would protect Tylman’s rights under
the Fifth and Sixth Amendments.
10 Nos. 09-2151, 09-2152 & 09-2153
The district court held a hearing on the motion on
July 14, 2006, at which time it granted the continuance
and excluded the time from the date of resolution of
that motion to the date of the new trial, November 27,
2006. It is the time used to resolve the motion to con-
tinue—June 22, 2006, through July 14, 2006—that Appel-
lants argue was improperly excluded.
On August 12, 2006, Appellants filed a motion to
dismiss, alleging a violation of the STA. On February 22,
2007, the district court held a hearing on that motion. At
that hearing, Taylor testified that prior to his filing the
continuance, Tylman had made it known to Taylor that
he did not want to forego a speedy trial. Notwithstanding
Tylman’s position, however, Taylor thought it best to
continue the trial. Taylor told the district court that he
had explained to Tylman that seeking a continuance
was within his discretion as an attorney, and that he
believed it was in Tylman’s best interests to have the
trial continued. Taylor also explained that at the time he
filed the motion, he had reviewed only 500 pages of the
thousands of pages of discovery materials that the pros-
ecution had made available.
At the conclusion of Taylor’s testimony, the district
court noted that in addition to Taylor’s request for more
time, at the hearing on the motion to continue, Hills’s then-
counsel, Jerold Barringer, had stated that none of the
defendants were ready to proceed to trial. Based on this
evidence, the district court concluded that the continu-
ance had been justified, and therefore, the motion to
dismiss had to be denied.
Nos. 09-2151, 09-2152 & 09-2153 11
We agree. Certain rights are fundamental, and therefore
personal, to a defendant. Such rights include the waiver
of the right to a jury trial, the right to plead guilty, the
right to testify on one’s own behalf, or the right to take
an appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). Al-
though Appellants assert that the waiver of a right to a
speedy trial is among these rights, they are incorrect. The
right to a speedy trial is certainly an important right, yet
trial tactics have always been within counsel’s province.
As we explained in United States v. Gearhart, 576 F.3d 459,
463 n.3 (7th Cir. 2009), “there is no requirement that
counsel obtain [the defendant’s] consent prior to making
purely tactical decisions such as the decision to seek a
continuance.”
Furthermore, the STA itself recognizes counsel’s ability
to seek a continuance. The STA states that a district court
may exclude time resulting from a continuance granted
“at the request of the defendant or his counsel . . . .” 18
U.S.C. § 3161(h)(7)(A) (emphasis added). Congress clearly
recognized that counsel could seek a continuance and
codified this understanding of trial strategy. We see
no reason to upset this understanding of the law. Ac-
cordingly, we find that the district court properly
excluded the time running from June 22, 2006, through
July 14, 2006. At that point, only twenty-one days out of
the seventy-day period had been consumed.
But Appellants argue that the statements accom-
panying the district court’s exclusion of time at the
July 14 hearing failed to satisfy the mandates of
§ 3161(h)(7)(A). Therefore, Appellants claim that the
12 Nos. 09-2151, 09-2152 & 09-2153
time running from July 15, 2006 (the day after the
hearing on the motion to continue) through July 30,
2006 (the last date during which no other motions were
pending) was improperly excluded.
As mentioned, § 3161(h)(7)(A) requires a court
excluding time on ends-of-justice grounds to articulate
its findings on the record. Napadow, 596 F.3d at 404-05. A
court need not do so contemporaneously with the ex-
clusion, but it must do so by the time it rules on a defen-
dant’s motion to dismiss. Id. at 405. If a court fails to
explain its reasons for excluding time, the time will be
counted toward the STA’s seventy-day period. Id. at 404.
The STA provides various factors a court may consider
in deciding that an ends-of-justice exclusion is war-
ranted. General congestion of a court’s trial calendar
is an invalid reason for an exclusion. United States v.
Aviles, 623 F.2d 1192, 1195 (7th Cir. 1980). Reasons
that are acceptable include whether the failure to
grant a continuance would result in a miscarriage of
justice, whether the case is so complex that adequate
trial preparation is impossible under the STA’s time
limits, and whether the failure to continue would deny
the defendant reasonable time to obtain counsel, or
would deny counsel the time necessary for effective
preparation. 18 U.S.C. § 3161(h)(7)(C).
At the hearing to resolve Taylor’s (and by extension,
Tylman’s) motion for a continuance, Taylor put forth
various reasons why the ends of justice would be served
by granting the continuance, including the intricacies
and voluminousness of the case and the seriousness of
Nos. 09-2151, 09-2152 & 09-2153 13
Tylman’s potential punishment. The court agreed with
Taylor that the case was serious and that the evidence
was complex. The court then questioned the other
defense attorneys to ascertain their thoughts on the
continuance. Both Hills’s counsel, Barringer, and Winters,
acting pro se, agreed that although they could proceed
without the continuance, they would prefer not to do so.
In granting the continuance, the district court stated
that the complexity of the case supported its conclusion
that a continuance was necessary. The court noted that
effective preparation of counsel was a factor it could
consider, and that without a continuance, it was surely
opening the door to a later ineffective assistance of
counsel claim. The district court also determined that
because the defendants were not in custody, they would
not be significantly prejudiced by a delay. In setting
the new trial date, the court also commented that its
time and schedule were valuable and that no more con-
tinuances should be granted.
We find that the district court’s ends-of-justice finding
was sufficient. The court articulated adequate reasons
for its decision to grant the continuance, including the
complexity of the case and the necessity to allow counsel
adequate preparation. These were proper reasons for
granting the continuance, and they suffice to meet the
requirements of § 3161.
And despite the fact that the court mentioned the defen-
dants’ status as unincarcerated pre-trial defendants, it
is clear that the principal reason for the court’s decision
to grant the continuance was to allow each defendant
14 Nos. 09-2151, 09-2152 & 09-2153
and his or her counsel adequate time to prepare for trial
in the face of the voluminous and intensive discovery
record. Its questioning of counsel on this very point
lends credence to that determination. Because the court’s
primary concern was adequate trial preparation, we
save for another day the question of whether a trial
court may give preference to cases in which the defen-
dant is in custody at the expense of those cases in
which the defendant is out on bail.
We also note that although the court commented on
its time and schedule, this comment was not the basis
for its ends-of-justice finding. Instead, the court’s state-
ment that its time and schedule were valuable was in-
tended to serve as a warning to the parties that the
court was disinclined to grant any more continuances.
The best way to avoid these types of challenges is to
clearly separate ends-of-justice findings from cautionary
statements regarding new trial dates; however, because
its time-management statement was not a reason
for the district court’s ends-of-justice finding, the court’s
ends-of-justice finding was not improper.
As the court’s July 14 ends-of-justice finding was suffi-
cient, the time between the granting of that motion and
the filing of subsequent motions was properly excluded.
At that point in the case, only twenty-one days had
elapsed from the STA time-clock. Because trial began
within the seventy-day period, Appellants’ STA argu-
ment fails. We now turn to Appellants’ constitutional
speedy trial arguments.
Nos. 09-2151, 09-2152 & 09-2153 15
B. Constitutional Right to a Speedy Trial
Appellants also argue that they were deprived of their
constitutional rights to a speedy trial under the Sixth
Amendment. We review a district court’s legal conclu-
sions regarding Sixth Amendment speedy trial claims
de novo, and its factual findings for clear error. United
States v. Arceo, 535 F.3d 679, 684 (7th Cir. 2008).
The constitutional right to a speedy trial is triggered
when an indictment is returned against a defendant. Id.A Sixth Amendment claim of a speedy trial violation
is analyzed by considering “whether delay before trial
was uncommonly long, whether the government or the
criminal defendant is more to blame for that delay,
whether, in due course, the defendant asserted his right
to a speedy trial, and whether he suffered prejudice as
the delay’s result.” Doggett v. United States, 505 U.S. 647,
651 (1992). The length of the delay, however, “is not so
much a factor . . . as it is a threshold requirement: with-
out a delay that is presumptively prejudicial, we
need not examine other factors.” United States v. Loera, 565
F.3d 406, 412 (7th Cir. 2009) (internal quotation marks
omitted), cert. denied, 130 S. Ct. 654 (2009). We have de-
termined that “delays approaching one year [are] pre-
sumptively prejudicial.” United States v. White, 443 F.3d
582, 589-90 (7th Cir. 2006).
In this case, Appellants did not stand trial until two
years after their indictments were handed down. Be-
cause two years creates a presumption of prejudice, we
must now consider the other three Doggett factors to deter-
mine whether that prejudice amounted to a constitu-
tional violation.
16 Nos. 09-2151, 09-2152 & 09-2153
1. Blame for the Delay
When analyzing which party is more to blame for the
delay, the reason for the delay is generally the focal
inquiry. United States v. Loud Hawk, 474 U.S. 302, 315
(1986). Because “pretrial delay is often both inevitable
and wholly justifiable,” Doggett, 505 U.S. at 656, “[d]if-
ferent weights should be given to different reasons for
delay . . . .” Arceo, 535 F.3d at 684. “Delays due to the
complexity of the case and the large number of defendants
support a finding that no Sixth Amendment violation
occurred.” United States v. Bass, 460 F.3d 830, 836 (6th
Cir. 2006). And while delays resulting from defense coun-
sel’s need to prepare are attributable to the defendant,
see United States v. Brown, 498 F.3d 523, 531 (6th Cir.
2007), delays resulting from a trial court’s schedule are
ultimately attributed to the government, but weighted
less heavily, Barker v. Wingo, 407 U.S. 514, 531 (1972).
Turning now to Appellants’ claim, we must analyze
each set of delays with those principles in mind. First, the
court granted a nearly four-month continuance from
July 14, 2006, through November 27, 2006, at the request
of Tylman’s counsel, Taylor. Hills’s then-counsel,
Barringer, also impliedly agreed with the basis of the
motion—that none of the defense counsel were currently
ready for trial. And Winters, proceeding pro se, con-
curred with Barringer’s comments. Because this continu-
ance was granted to allow trial counsel more time to
prepare, this delay was attributable to Appellants and
cuts against their Sixth Amendment argument.
Second, the court held a hearing on August 7, 2006, in
which it disqualified Barringer as Hills’s counsel due to
Nos. 09-2151, 09-2152 & 09-2153 17
a violation of the Illinois Rules of Professional Conduct.
On August 23, 2006, the court held a hearing with Hills
to assess her efforts in finding replacement counsel.
Prior to that second hearing, however, the government
sent a letter to presiding Judge Michael McCuskey, re-
minding him that he needed to recuse himself because
of a prior recommendation he made to the United
States Attorney’s Office that the office investigate
Winters for possible criminal conduct. Judge McCuskey
formally recused himself at the August 23 hearing.
Two weeks later, on September 6, 2006, Judge Michael
Mihm, who had been assigned to the case, held a tele-
phone status conference with the parties. At that confer-
ence, Judge Mihm noted that Winters had filed an inter-
locutory appeal, alleging STA violations, Hills still did
not have an attorney, and Taylor had moved to with-
draw as Tylman’s counsel. Judge Mihm decided that
it would be premature to schedule a new trial date when
two of the three defendants were unrepresented, so
he scheduled a hearing for September 26, 2006, to
address scheduling and other pending matters.
At the September 26 hearing, both Hills and Tylman
requested to represent themselves at trial, and the
district court agreed. The court then addressed the issue
of the trial date. Judge Mihm commented that based on
his experience in conducting tax fraud cases, he was
concerned that the voluminous nature of discovery and
complexity of the legal issues would require a trial date
at least six months out—sometime in April 2007. Tylman
responded that he foresaw at least nine months of work,
18 Nos. 09-2151, 09-2152 & 09-2153
based on the amount of discovery. Tylman then re-
quested a trial date no earlier than the end of May, to
which Judge Mihm responded by inquiring whether
late June was desirable. Tylman agreed, as did Hills, and
the district court then scheduled trial for June 25, 2007.
While this delay of approximately ten months is some-
what attributable to the government, Appellants share
most of the responsibility. Judge McCuskey’s recusal was
attributable to the government, despite its contention
otherwise, because a judicial recusal is more akin to a
trial court’s scheduling problem than a defendant’s
request for more time. Reasoning by analogy from
Barker, 407 U.S. at 531, we think the government can be
properly assessed with this initial delay.
But because the delay was prolonged by Appellants’
difficulties in securing replacement counsel, this delay is
not entirely attributable to the government. Two weeks
after Judge McCuskey recused himself, Judge Mihm was
assigned to the case. At that time, two defendants were
unrepresented and Winters had filed an interlocutory
appeal. The twenty days that it took for the court to
resolve these issues are, therefore, attributable to Appel-
lants.
The time between September 26, 2006, and June 25, 2007,
is also attributable to Appellants. It was Appellants who
requested to represent themselves. It was Appellants who
needed additional time to sort through the discovery
materials in preparation for trial. It was Appellants who
sought the nine-month continuance of the trial date in
furtherance of that preparation. These nine months
were therefore attributable to Appellants. As such, we
Nos. 09-2151, 09-2152 & 09-2153 19
think that most of this ten-month delay can be traced
to Appellants rather than the government.
Third, there was a delay occurring in April 2007. At that
time, Appellants sought a continuance, claiming that the
government was not making available all the discovery
materials to which Appellants were entitled. On April 25,
2007, the district court held a hearing on the motion.
The court concluded that the government was not with-
holding information, contrary to Appellants’ assertions.
This delay was not attributable to the government. It was
Appellants’ mistaken belief that the government was
withholding information, so Appellants should bear
the blame for that delay.
Finally, there were two delays occurring in April 2007
and again in September 2007, when Appellants sought
more time to review the massive amounts of documents
produced during discovery. In fact, the government
unsuccessfully objected to the September 2007 motion.
Because these continuances were both granted to allow
Appellants more trial preparation time, they are attribut-
able to Appellants.
We conclude that most of the delay in proceeding to
trial was attributable to Appellants. We now turn to the
second Doggett factor.
2. Assertion of Speedy Trial Rights
It is evident from Appellants’ various motions and
arguments that they asserted their rights to a speedy
20 Nos. 09-2151, 09-2152 & 09-2153
trial. We therefore turn to whether they suffered prej-
udice from the trial’s delay.
3. Prejudice Resulting from the Delay
We examine prejudice resulting from a delay in trial in
light of the interests that the Sixth Amendment seeks to
protect. The Sixth Amendment right to a speedy trial is
animated by the need “(1) to prevent oppressive pretrial
incarceration; (2) to minimize anxiety and concern of
the accused; and (3) to limit the possibility that defense
will be impaired.” White, 443 F.3d at 591 (internal quota-
tion marks omitted). But “[w]hen a defendant is unable
to articulate the harm caused by delay, the reason for
the delay . . . will be used to determine whether the
defendant was presumptively prejudiced.” United States
v. Mundt, 29 F.3d 233, 236 (6th Cir. 1994). In fact, as long
as the government shows reasonable diligence in pros-
ecuting its case, a defendant who cannot demonstrate
prejudice with specificity will not show a Sixth Amend-
ment violation, no matter how long the delay. United
States v. Howard, 218 F.3d 556, 564 (6th Cir. 2000); see also
Doggett, 505 U.S. at 656.
With regard to this case, we first note that none of the
Appellants was subject to pretrial incarceration. That
factor cuts against them. Next, Hills claims that she
suffered “great anxiety and concern over this case.” But
she has offered no evidence of her anxiety besides her
general assertion that she was so afflicted, so we need
not give this claim much weight. See, e.g., United States v.
Nos. 09-2151, 09-2152 & 09-2153 21
Frye, 489 F.3d 201, 213 (5th Cir. 2007) (finding that an
incarcerated defendant’s uncorroborated claim of anxiety
was insufficient to establish prejudice); United States v.
Henson, 945 F.2d 430, 438 (1st Cir. 1991) (considering only
“undue pressures” and not the anxiety that normally
accompanies criminal procedures); Morris v. Wyrick, 516
F.2d 1387, 1391 (8th Cir. 1975) (same). Finally, Appellants
claim that their defense was impaired because some of
their witnesses no longer recalled vividly the events
surrounding Appellants’ illegal activities. We note, how-
ever, that because the delays in this case were pri-
marily attributable to Appellants, they must demonstrate
specifically how their defenses were prejudiced. Howard,
218 F.3d at 564; see also Doggett, 505 U.S. at 656. Appellants
have not made this specific showing.
Only two of the witnesses Appellants point to testified
that the passage of time affected their memories. And one
of those witnesses testified that if provided information
to help him connect a particular date to a given meeting,
he would be able to answer defense counsel’s questions.
Appellants do not, however, point to any testimony by
either of these two witnesses in which the witness could
not recall an answer to a particular question.
Two more witnesses to whom Appellants refer did not
testify that their memories were less potent because of
the passage of time. In fact, one witness explained that
he had trouble remembering events due to injuries sus-
tained in an airplane crash decades earlier. The other
testified that his stroke two years prior to trial had
affected his ability to speak, but he did not testify as to
the stroke’s effect on his memory.
22 Nos. 09-2151, 09-2152 & 09-2153
Finally, Appellants point to two witnesses who were
no longer available at trial, but who Appellants claim
could have assisted their defense. Appellants do not
state that these witnesses would have helped their
defense, but rather, only that this testimony might have
helped their defense. They do not point to any specific
testimony these witnesses would have offered; they
only identify speculative testimony entirely unsup-
ported by evidence. Because Appellants can point to no
specific testimony that any of these six witnesses
would have offered but were unable to offer by the time
of trial, Appellants have failed to prove with specificity
that they suffered prejudice to their defense.
As Appellants were responsible for most of the delay
in their trial date, and as they failed to show that they
suffered any prejudice, they have also failed to show
a constitutional speedy trial violation.
C. Fourth Amendment Suppression
Appellants also contend that the district court erred in
denying their motions to suppress evidence obtained
pursuant to the search warrant executed at WFS. In
reviewing a denial of a motion to suppress, we examine
factual findings for clear error and legal questions de
novo. United States v. Burnside, 588 F.3d 511, 516-17 (7th
Cir. 2009).
The Fourth Amendment mandates that a warrant
describe with particularity “the place to be searched and
the persons or things to be seized.” U.S. Const. amend. IV.
Nos. 09-2151, 09-2152 & 09-2153 23
Case law has clarified that “[t]he level of specificity
must be such . . . that the officers executing the warrant
are able to identify the things to be seized with rea-
sonable certainty.” United States v. Sleet, 54 F.3d 303, 307
n.1 (7th Cir. 1995) (internal quotation marks omitted).
Supporting affidavits may supply the particularity re-
quired, as long as those affidavits are incorporated into
the warrant. United States v. Jones, 54 F.3d 1285, 1290 (7th
Cir. 1995). If evidence is obtained in violation of the
Fourth Amendment, that evidence may be excluded, see,
e.g., Arizona v. Evans, 514 U.S. 1, 11 (1995), but it need not
be, especially if evidence is obtained by officers acting
in good faith on their belief that the warrant and their
execution of it were valid. United States v. Leon, 468
U.S. 897, 919-21 (1984).
On March 31, 2000, IRS agents executed a search war-
rant at WFS’s offices. As mentioned earlier, after their
first attempt at execution, the officers had to return
twice because of deficiencies in the first two warrants. The
third warrant on which the officers acted identified the
property to be seized as “[v]arious records and docu-
ments showing Tylman’s participation in a fraudulent
Trust Scheme, designed to evade Federal Income Taxes
for the years 1994, 1995, 1996, 1997, 1998, and 1999.” (Gov’t
App. at 69.) The warrant also contained an attach-
ment, which specified twenty-five particular types of
items to be seized. Appended to the warrant application
was a lengthy affidavit in which IRS Agent Bernard
Coleman detailed the alleged criminal activity occurring
at WFS and recited the evidence that supported the
conclusion that Aegis-related records were located on
24 Nos. 09-2151, 09-2152 & 09-2153
WFS’s premises. Attached to the affidavit was the list
of items to be seized, which was identical to the list
contained in the attachment. The items seized included
five computers and numerous floppy discs. Because of
time constraints, the agents removed the computers
from WFS, copied the hard drives over the weekend,
and returned the computers that Monday.
Appellants filed motions to suppress the evidence in
the district court. After a three-day hearing on the issue,
the court concluded that the list was sufficiently par-
ticular, finding that because this was a complex finan-
cial investigation, the warrant had to be broad enough
to reflect the circumstances of the investigation. The
district court determined that the affidavit supporting
the warrant supplied the probable cause necessary, and
that the evidence was therefore constitutionally obtained.
Appellants claim on appeal that the warrant authorized
the seizure of all files and electronic media, but this is
incorrect. The warrant actually specified the seizure only
of those electronic devices “capable of storing any of the
records described above,” which referred to items related
to conspiracy; tax, mail, and wire fraud; and money
laundering. (Gov’t App. at 71-76.) The warrant was there-
fore not as broad as Appellants contend. Furthermore,
considering the warrant in light of the accompanying
affidavit and attachment, it is evident that there were
limits on what could be seized from the electronic me-
dia. In fact, the warrant specified the seizure of elec-
tronic business records and documents only, thereby pre-
cluding the seizure of electronic personal files. Finally,
Nos. 09-2151, 09-2152 & 09-2153 25
Appellants have not identified any particular evidence
seized that was not authorized by the warrant. On these
bases, we conclude that the warrant was sufficient and
that the evidence obtained pursuant to that warrant was
properly admitted.
Appellants make one final argument for exclusion,
alleging that the warrant was deficient because it did not
specify the manner in which agents were to search the
electronic media. But the Supreme Court has held that
generally, the authority to determine how a warrant
should be executed is best left to the officers performing
the seizure. Dalia v. United States, 441 U.S. 238, 257-58
(1979). That rule is applicable here, and we see no rea-
son to disturb that rule.
D. Statute of Limitations
Winters argues that his conviction for filing a false tax
return is time-barred by the statute of limitations. We
review the claimed violation of a statute of limitations
de novo but give deference to the district court’s factual
findings. United States v. McGowan, 590 F.3d 446, 456
(7th Cir. 2009).
The offense of filing a false tax return requires the
government to prove that (1) the defendant made or
caused to be made a federal income tax return that he
verified as true; (2) the return was false with regard to a
material matter; (3) the defendant signed the return
willfully, knowing that it was false; and (4) the return
contained a written declaration that it was made under
26 Nos. 09-2151, 09-2152 & 09-2153
penalty of perjury. United States v. Oggoian, 678 F.2d 671,
673 (7th Cir. 1982). A charge of filing a false tax return
is timely if the indictment charging the offense is re-
turned within six years of the day on which the offense
is complete. United States v. Solomon, 688 F.2d 1171, 1179
(7th Cir. 1982).
The date on which an offense is complete, and thus, the
date on which the statute of limitations begins to run,
depends on whether the return is timely filed. If a return
is timely filed, the statute of limitations begins to run
on the due date of the return. Hotel Equities Corp. v.
Comm’r, 546 F.2d 725, 727 n.3 (7th Cir. 1976). For returns
that are untimely, the operative date is the filing date,
or the date on which the IRS receives the return. In such
a case, the statute of limitations begins to run on the
date that the IRS received the return. Emmons v. Comm’s,
898 F.2d 50, 51 (5th Cir. 1990).
Winters’s 1998 return was late; it was not signed until
April 3, 2000. Winters testified that he mailed it on the
same day that he signed the return, but the IRS stamped
the return with a postmark date of April 6, 2000, and a
received-on date of April 8, 2000. Because his return
was untimely filed, the statute of limitations did not
begin to run until the IRS received the return—April 8,
2000. Because Winters’s indictment was issued within
six years of the date the statute of limitations began to
run—April 6, 2006—Winters’s conviction was not time-
barred.
Nos. 09-2151, 09-2152 & 09-2153 27
E. Prosecutorial Misconduct
Winters also alleges that the prosecution committed
misconduct by offering evidence of his other returns, and
that the district court erred in admitting this evidence.
We review the admission of evidence for abuse of dis-
cretion. United States v. Jumper, 497 F.3d 699, 703 (7th Cir.
2007). If a claim of prosecutorial misconduct is made at
the district court level, we review the district court’s
refusal to enter a judgment as a matter of law for an
abuse of discretion. See United States v. Sandoval, 347 F.3d
627, 631 (7th Cir. 2003). If the defendant does not raise
the claim of prosecutorial misconduct until appeal, how-
ever, it is reviewed only for plain error. Id.Winters’s first claim of misconduct is that the prose-
cutor repeatedly asked leading questions and later ac-
knowledged that she had no evidence to support the
questions that she asked. He points to no record citations
and provides us with no specific examples, however,
so this claim is waived. United States v. Dunkel, 927
F.2d 955, 956 (7th Cir. 1991) (per curiam).
Winters next argues that the prosecutor committed
misconduct by offering, and the district court erred by
admitting, his tax returns for 1999 and subsequent
years. Under 26 U.S.C. § 7206(1), the statute that Winters
was charged with violating, the false entry must be mate-
rial. “[A] false statement is material when it has the
potential [to] hinder[] the IRS’s efforts to monitor and
verify the tax liability” of the taxpayer, or when it results
in the underpayment of tax. United States v. Presbitero,
28 Nos. 09-2151, 09-2152 & 09-2153
569 F.3d 691, 700-01 (7th Cir. 2009) (internal quotation
marks omitted) (alteration in original).
The prosecutor offered and the district court admitted
Winters’s post-1998 tax returns to establish this materi-
ality element. As an IRS agent testified at trial, the
$3000 false loss carried over from Winters’s 1998 return
resulted in an understated tax liability on his 1999 return.
Therefore, the evidence of Winters’s subsequent tax
returns was necessary to establish that Winters’s false
statement was material. It was neither prosecutorial
misconduct nor an abuse of discretion to admit this
evidence.
Winters also objects to the introduction of an unsigned
income tax return for 1998 that showed only income
items and did not include the deductions Winters
included on his signed return. The government argued
that this unsigned return was necessary to show
Winters’s willfulness in the filing of the false return,
which is also a required element under § 7206(1). The
government claims that Winters used this unsigned
return to obtain a residential loan from a bank. Because
this unsigned return included a high income and no
deductions, so goes the argument, this demonstrated
that Winters’s inclusion of income was done for the
express purpose of gaining whatever benefit suited him
at the time. In contrast, his signed IRS return claimed
numerous deductions so that he could avoid substantial
income tax payments. As with the evidence of the subse-
quent returns, we see neither misconduct nor abuse of
discretion in the admission of this evidence. The jury
surely could have concluded that this unsigned return
Nos. 09-2151, 09-2152 & 09-2153 29
helped establish willfulness, and we see no error in
its admission.
Finally, Winters claims for the first time that the prose-
cutor committed misconduct and the court erred by
allowing the testimony of IRS Agent James Pogue.
Agent Pogue testified that Winters claimed a mileage
deduction on his individual return and was also reim-
bursed by his political campaign for that same mileage.
Because this is the first time Winters raises this argu-
ment, he must show that the admission of this testimony
was plain error. Sandoval, 347 F.3d at 631. He cannot do
so, however, because Agent Pogue never asserted that
this inclusion was false. Rather, he simply noted that as
he reviewed Winters’s 1998 return, he noticed this
fact. This testimony comprises three lines in a 2867-page
transcript. It was not plain error for the court to admit
a truthful statement that surely had little impact on
the jury’s verdict.
Winters also claims that the prosecutor engaged in
misconduct and the court erred by permitting Agent
Pogue’s testimony that he could not connect Winters’s
reported income to that shown on Winters’s financial
ledgers. This testimony was introduced at Winters’s
sentencing, however, and so had no ability to influence
the jury’s verdict, contrary to Winters’s claim on appeal.
Therefore, this claim is rejected.
F. Improper Sentence
Winters finally contends that the district court
imposed on him an excessive sentence. We review a
30 Nos. 09-2151, 09-2152 & 09-2153
district court’s interpretation and application of the
guidelines de novo, United States v. Samuels, 521 F.3d 804,
815 (7th Cir. 2008), and once we are assured that the
application was correct, we review the sentence im-
posed for reasonableness under an abuse-of-discretion
standard, United States v. Panaigua-Verdugo, 537 F.3d 722,
724 (7th Cir. 2008). On appeal, however, a within-guide-
lines sentence is entitled to a presumption of reasonable-
ness. United States v. Mendoza, 576 F.3d 711, 723 (7th
Cir. 2009).
In applying the guidelines to Winters’s case, the
district court first looked to the offense of conviction.
Winters was convicted under 26 U.S.C. § 7206(1), and
calculations for that offense are determined using
U.S.S.G. § 2T1.1. The district court determined, consistent
with the jury verdict, that the false deduction claimed by
Winters was in the amount of $34,117. Using § 2T1.1(c)
Note C, the court then determined that the intended loss
was twenty-eight percent (the applicable tax rate) of
$34,117, or $9,552.76. The court then used this tax-loss
amount to arrive at Winters’s base-offense level.
Winters complains that the actual loss to the Trea-
sury was only $450, and therefore, this much smaller
amount should have been used to calculate his base-
offense level. However, the guidelines explicitly address
this point, explaining that intended loss is used to de-
termine base-offense level, not actual loss. U.S.S.G.
§ 2T1.1(c)(1). The district court therefore properly calcu-
lated the guidelines range at fifteen to twenty-one
months’ imprisonment.
Nos. 09-2151, 09-2152 & 09-2153 31
The district court then sentenced Winters to twelve
months’ imprisonment. Winters nonetheless challenges
his below-guidelines sentence, arguing that the court
improperly based his sentence on the conspiracy
conduct of which he was acquitted. But it is well-settled
that acquitted conduct may be considered by the sen-
tencing judge in determining the applicable guidelines
range. United States v. Watts, 519 U.S. 148, 152-53 (1997)
(per curiam). And, in any event, the court made it
clear that Winters’s sentence was based primarily on
his tax fraud. Accordingly, this argument is without merit.
Finally, Winters claims that the court improperly
ignored the 18 U.S.C. § 3553(a) factors in imposing the
sentence that it did. A sentencing court need not
address every factor explicitly. United States v. Brock, 433
F.3d 931, 936 (7th Cir. 2006). Rather, it is enough if the
court gave the factors meaningful consideration in light
of the evidence as a whole. United States v. Harris, 490 F.3d
589, 597 (7th Cir. 2007). Here, the court considered the
nature and circumstances of Winters’s offense, noting
that Winters’s criminal activity arose out of his effort
to be elected to Congress. The court also addressed
the need to promote respect for the law, as well as the
seriousness of the offense, which was compounded be-
cause of Winters’s status as an attorney. Because the
court properly considered the § 3553(a) factors, this
argument, too, is without merit. Winters’s sentence is
affirmed.
32 Nos. 09-2151, 09-2152 & 09-2153
G. Sufficiency of Evidence
Hills contends that the evidence against her was insuf-
ficient to support her conviction on either count. In ex-
amining the sufficiency of the evidence, “[w]e review
the evidence at trial in the light most favorable to the
government and will overturn a conviction based on
insufficient evidence only if the record is devoid of evi-
dence from which a reasonable jury could find guilt
beyond a reasonable doubt.” United States v. Hampton,
585 F.3d 1033, 1040 (7th Cir. 2009) (internal quotation
marks omitted). This is an onerous burden for an appel-
lant to bear. See United States v. Morris, 576 F.3d 661, 665-66
(7th Cir. 2009).
We first examine the sufficiency of the evidence sup-
porting Hill’s conviction for conspiracy. To satisfy its
burden of showing that Hills engaged in a conspiracy to
impede the United States under 18 U.S.C. § 371, the
government must prove the existence of three elements
beyond a reasonable doubt: “(1) an agreement to accom-
plish an illegal objective against the United States; (2) one
or more overt acts in furtherance of the illegal purpose;
and (3) the intent to commit the substantive offense, i.e.,
to defraud the United States.” United States v. Cyprian, 23
F.3d 1189, 1201 (7th Cir. 1994). In satisfying its burden
of proof, however, the government may present evidence
that is entirely circumstantial. United States v. Pazos,
993 F.2d 136, 139 (7th Cir. 1993).
To show the existence of an agreement between
Hills and Tylman to defraud the United States, the gov-
ernment presented circumstantial evidence of Hills’s
Nos. 09-2151, 09-2152 & 09-2153 33
role in selling the Aegis trusts. For example, the gov-
ernment pointed to evidence that Hills made a joint
sales pitch with Tylman; signed an Aegis Team Agree-
ment, wherein she agreed to “market and promote mem-
bership in Aegis”; and bragged to others, including
Agent Priess, about her marketing of the Aegis plan. The
government also presented evidence of her financial
incentives to sell the trust packages, her knowledge
of the trust schemes, her service as the director or
creator of several Aegis trusts, her work with Tylman
in selling and promoting the Aegis packages, her im-
proper notarization of Aegis documents, her exercise of a
power-of-attorney for a WFS customer, her sig-
nature authority over the WFS bank account, and her
part in changing the name on a flow of income to
make it appear to belong to a third party.
Hills’s activities are similar to those undertaken by
defendants in prior cases that federal courts have
found to be sufficient to support convictions from
an evidentiary perspective. For example, we found in
United States v. Furkin, 119 F.3d 1276, 1280 (7th Cir. 1997),
that an involved business relationship, among other
evidence, was sufficient to sustain a defendant’s con-
spiracy conviction. Similarly, in United States v. Becker,
569 F.2d 951, 962 (5th Cir. 1978), the Fifth Circuit found
that a defendant’s financial interest in the success of
a scheme was sufficient circumstantial evidence of par-
ticipation in the conspiracy. And we found in United
States v. Goulding, 26 F.3d 656, 663-64 (7th Cir. 1994), that
a defendant’s participation in arranging the formation
of fictitious corporations was sufficient circumstantial
evidence of his knowledge of the conspiracy.
34 Nos. 09-2151, 09-2152 & 09-2153
Although the evidence that the government presented
did not involve direct evidence of Hills’s agreement to
defraud the United States, at the very least, it was strong
circumstantial evidence of her agreement with Tylman
to act in a concerted effort to defraud the United States.
Assuming for the time being (we will address this be-
low) that Hills had knowledge of the illegality of the
trusts and intent to sell them, then her willingness to
promote them certainly could show her agreement to
conspire against the government.
Next, we examine whether the government presented
sufficient evidence to show that Hills engaged in one
or more overt acts to further the conspiracy’s purpose.
We begin by noting that there is much overlap between
the evidence tending to show Hill’s agreement to
join the conspiracy and her acts taken in furtherance
thereof. We need not rehash the evidence outlined above.
It is enough to note that the evidence presented was
sufficient to establish at least circumstantial proof of
Hills’s actions in furtherance of the conspiracy.
Finally, we turn to whether the government presented
sufficient evidence of Hills’s intent to commit the
offense of defrauding the United States. During the
IRS’s search of WFS, the agents found an IRS bulletin
in Hills’s office warning financial advisors to “[s]teer
clear of abusive trusts” and informing potential violators
of possible criminal prosecution. The IRS agents also
found a Wall Street Journal article detailing the IRS’s
recent crackdown on abusive trusts; that article specifi-
cally mentioned business trusts and various holding
Nos. 09-2151, 09-2152 & 09-2153 35
trusts. Additionally, the agents seized an IRS notice
warning financial advisers against the use of abusive
trusts and describing the characteristics of those trusts.
This description included an explanation of trusts used
to hide the owner’s identity, multiple trusts used to hide
assets, and trusts that were marketed as a means of ob-
taining tax benefits despite no meaningful change in
the taxpayer’s control of his assets. And finally,
the agents found an advertisement listing Hills as a
coordinator for a WFS seminar promoting “reduction
of income tax.”
The government argued that these documents, in
concert, tended to show Hills’s intent to defraud the
IRS. Viewed in the light most favorable to the govern-
ment, we cannot say that this evidence was insufficient
to permit the jury to draw the conclusion that Hills
knew the purpose of the Aegis scheme and intended to
defraud the IRS by promoting that scheme.
Because the evidence was sufficient to support the
jury’s verdict that Hills committed conspiracy to
defraud the United States, we reject her argument on
this point. We now turn to her argument that there was
insufficient evidence to convict her on filing a false tax
return.
To prove that Hills willfully filed a false tax return
under 26 U.S.C. § 7206(1), the government must demon-
strate the existence of four elements beyond a rea-
sonable doubt: (1) the defendant made or caused to be
made a federal income tax return that she verified was
true; (2) the return was false as to a material matter; (3) the
36 Nos. 09-2151, 09-2152 & 09-2153
defendant signed the return willfully and knowing it
was false; and (4) the return contained a written declara-
tion that it was made under penalty of perjury. Oggoian,
678 F.2d at 673. With regard to criminal tax statutes, the
Supreme Court has defined “willfulness” as “a voluntary,
intentional violation of a known legal duty.” Cheek v.
United States, 498 U.S. 192, 200 (1991). The government
is permitted to, and often does, prove willfulness
through circumstantial evidence. United States v. Britton,
289 F.3d 976, 981 (7th Cir. 2002).
Hills does not challenge the sufficiency of the evidence
as it relates to her entire conviction; instead, she chal-
lenges only the evidence of her willfulness in filing
the false return. The government’s evidence of Hills’s
willfulness consisted primarily of the testimony of her
estranged husband, Stephen Hills. Stephen testified that
Hills was responsible for managing the couple’s finances,
and that her responsibilities included having the tax
returns prepared. Stephen would provide his wife with
all of his relevant paperwork, and she would then
compile it and forward it to the couple’s accountant.
For the year 2000 (the year of the return on which the
conviction was based), the Hillses’ return reported their
income as $30,376. A single Schedule C was attached to
the return. That Schedule C, used to report the taxable
value of Stephen’s computer business, reported gross
receipts of $18,500 and a gross profit of $13,682. It also
reported substantial expenses, resulting in an overall
loss of $30,798. The IRS determined that the expenses
were, in fact, highly inflated; Stephen’s business did not
Nos. 09-2151, 09-2152 & 09-2153 37
lose $30,798 as reported. Because of these inaccura-
cies, the Hillses’ 2000 income was substantially under-
reported, showing income of only $194.
Also compounding the error in the return, the Hillses’
2000 return did not include a business Schedule C for
Hills, despite the fact that checks totaling $18,258.66
were deposited by WFLA and WFS into Hills’s trust
account—DJH Asset Management—and her personal
bank account. When the government compared the
2000 return to the Hillses’ 1999 return, it noticed a dis-
crepancy as the 1999 return had included a Schedule C
reporting Hills’s receipt of funds from WFLA and WFS.
The government argued that based on Hills’s knowl-
edge that the WFLA and WFS income was taxable—as
gleaned from her inclusion of these funds on her 1999
return—her failure to report these same funds on
her 2000 return proved that her filing a false return
was done willfully. Our review of the evidence in
the light most favorable to the government leads to
our conclusion that a jury could have inferred Hills’s
intent from this evidence. Stephen’s testimony regarding
Hills’s responsibility for the finances of the family, as
well as the differences in her returns for the years 1999
and 2000, and the substantial tax benefit she received
from her failure to include a Schedule C with her 2000
return was more than enough circumstantial evidence
to establish her willfulness beyond a reasonable doubt.
Therefore, her second sufficiency of the evidence argu-
ment also fails. We now turn to Hills’s prosecutorial
misconduct argument.
38 Nos. 09-2151, 09-2152 & 09-2153
H. Prosecutorial Misconduct
Hills next argues that the prosecution committed mis-
conduct when the prosecutors mentioned the defendants’
invocations of their Fifth Amendment right to remain
silent during the prosecution’s closing argument. Hills
did not, however, raise this argument during trial, so we
review it only for plain error. Sandoval, 347 F.3d at 631.
Under our plain-error review, Hills must demonstrate
that (1) there was error, (2) it was plain, (3) it affected her
substantial rights, and (4) we should exercise our discre-
tion to correct that error because it seriously affected the
fairness, integrity, or public reputation of the judicial pro-
ceedings. United States v. Olano, 507 U.S. 725, 732-35 (1993);
United States v. Jaimes-Jaimes, 406 F.3d 845, 847-49 (7th
Cir. 2005). Because we are dealing with a claim of prose-
cutorial misconduct, Hills must demonstrate that the
comments at issue were “obviously” or “clearly” improper.
United States v. Renteria, 106 F.3d 765, 766-67 (7th Cir.
1997). And because this review is for plain error only,
Hills must also show that not only was she deprived of
a fair trial, but also that the outcome of that trial prob-
ably would have been different absent the prosecution’s
remarks. Sandoval, 347 F.3d at 631.
The Fifth Amendment protects a defendant’s right
against compelled self-incrimination by permitting a
defendant to refuse to testify at her trial. U.S. Const.
amend. V. To protect this right, the Supreme Court has
determined that the prosecution may not comment on
the defendant’s refusal to testify before the jury. By
putting this stricture in place, the Court has tried to
Nos. 09-2151, 09-2152 & 09-2153 39
ensure that the jury will not infer guilt from a defendant’s
silence. Griffin v. California, 380 U.S. 609, 614 (1965). But
the rule is not so strict as to bar the prosecution from
commenting indirectly on the defendant’s exercise of
her constitutional rights in all situations. United States v.
Ochoa-Zarate, 540 F.3d 613, 618 (7th Cir. 2008). In order
to determine the propriety of a prosecutor’s indirect
reference to a defendant’s constitutional rights, we
must determine whether the remarks, viewed in context,
demonstrated the prosecutor’s “manifest intent[]” to use
the defendant’s invocation of her rights as evidence of
guilt, or whether the jury would “naturally and neces-
sarily” view the remark as such. United States v. Willis,
523 F.3d 762, 773 (7th Cir. 2008).
In this case, the prosecution made two references to
the Fifth Amendment during its closing, despite an
explicit warning from the district court to refrain from
referencing Hills’s invocation of her right to remain
silent. In particular, in summarizing a recording of
Tylman speaking with Agent Priess, the prosecutor stated:
And you don’t really need to worry about that
Fifth Amendment protection unless you’re
worried that you’re [d]oing something illegal. They
knew perfectly well precisely what they were
doing.
(Appellant App. at 97-98.) The prosecutor also stated:
There are a number of things that are inconsistent
with good faith in this case. Hiding things from
the IRS, hiding records, lying to the IRS, paying
40 Nos. 09-2151, 09-2152 & 09-2153
a little tax to make it look like it’s legitimate,
creating entities that really do nothing except to
funnel money through, taking the Fifth Amend-
ment. In this case, they’re using the Fifth Amend-
ment not as a shield to protect themselves from
incrimination, but as a sword to prevent the IRS
from getting the information that they are
entitled to.
(Id. at 99.)
Hills argues that because neither Tylman nor Winters
invoked their Fifth Amendment rights, any such refer-
ences necessarily referred to her, or at least led the jury
to so conclude. The government counters that the prose-
cution’s statements regarding the Fifth Amendment
were not references to Hills’s refusal to testify, but were
in fact references to statements that Tylman made to
Agent Priess during the latter’s undercover investigation
of WFS.
While we agree with the government that when read
in context, the statements most likely referred to
Tylman’s assertions that if investigated, he would simply
“plead[] the Fifth Amendment,” (Id. at 158), this alone
does not end our inquiry. As already noted, indirect
commentary on a defendant’s failure to testify can still
violate that defendant’s Fifth Amendment rights, de-
pending on the context in which it is used. United States
v. Aldaco, 201 F.3d 979, 987 (7th Cir. 2000).
What ultimately guides our conclusion that these com-
ments were made in error was the fact that the prosecu-
tion cast invocations of the Fifth Amendment in a
Nos. 09-2151, 09-2152 & 09-2153 41
negative light, which is surely the very thing that the
right against self-incrimination seeks to protect. See
Griffin, 380 U.S. at 614. As such, we are unable to say that
the jury did not “naturally and necessarily” conclude
that the prosecution’s comments regarding the Fifth
Amendment referred to Hills, the only defendant who
did not testify in her own behalf. We therefore con-
clude that it was error for the government to make these
references.
We also find that these statements amounted to plain
error. First, we note a very simple reason for this con-
clusion—the district court judge expressly warned the
prosecution to refrain from any references to the Fifth
Amendment. The prosecution was clearly aware of this
restriction, yet made two references to the Fifth Amend-
ment anyway. Second, and most importantly, this error
certainly presented more than a “nontrivial possibility”
that the references were determinative to the outcome
of the case. United States v. Mannava, 565 F.3d 412, 414
(7th Cir. 2009). As mentioned, Hills was the only
defendant to invoke her Fifth Amendment right. As
such, it is entirely possible that the jury thought the
prosecution was referring to Hills, and not Tylman. To
ensure the viability of the Fifth Amendment by pro-
tecting a defendant’s right to be free from compelled self-
incrimination, we must not allow the prosecution to cast
a defendant’s invocation of the Fifth Amendment in a
negative light, as this serves only to penalize her for
exercising that right.
Because we think that the government’s references to
the Fifth Amendment tip the scales on the side of plain
42 Nos. 09-2151, 09-2152 & 09-2153
error, we must next analyze whether that error affected
Hills’s substantial rights. In determining whether the
error affected Hills’s substantial rights, we apply the
same factors used in a harmless error analysis; however,
the burden shifts to the defendant. See United States v.
Olano, 507 U.S. 725, 734 (1993). We therefore look to
(1) the intensity and frequency of the references,
(2) which party elected to pursue the line of ques-
tioning, (3) the use to which the prosecution put
the silence, (4) the trial judge’s opportunity to
grant a motion for a mistrial or to give a curative
instruction, and (5) the quantum of other evi-
dence indicative of guilt.
Fencl v. Abrahamson, 841 F.2d 760, 763 (7th Cir. 1988); see
also id. at 766-67.
Hills argues that the lack of direct evidence, coupled
with the prosecution’s references to the Fifth Amend-
ment, demonstrates that if not for the prosecution’s
comments, she likely would have been acquitted. In
essence, she is claiming that the evidence of her guilt,
standing alone, was not enough to convict her and there-
fore, a conviction would result in a miscarriage of justice.
Under these circumstances, we must agree.
The government twice made reference to the Fifth
Amendment in the face of explicit warnings to avoid
doing so, the judge did not undertake any curative mea-
sure to avoid the jury’s improper use of those references,
and all of the evidence against Hills was circumstan-
tial. Although we note that the prosecution referenced
Nos. 09-2151, 09-2152 & 09-2153 43
the Fifth Amendment while purportedly discussing
Tylman’s actions, the countervailing consideration is that
Hills was the only defendant who invoked her Fifth
Amendment rights. As such, it seems plausible to us
that the jury quite possibly equated this reference to
Hills’s conduct rather than Tylman’s.
Because we have reached the conclusion that Hills met
her burden of proving the gravity of the government’s
error, our only remaining question is whether we
should exercise our discretion to correct that error be-
cause it seriously affected the fairness, integrity, or
public reputation of the judicial proceedings. We think
that we must intervene to correct the error in this case.
The government’s references to the Fifth Amendment
cast insinuations of guilt upon defendants who linger in
its protections. Were we to allow these sort of references,
the government would have an incentive to undercut
a defendant’s Fifth Amendment rights in future cases,
which is, of course, unfair to defendants. The public
would be at a disservice because a fundamental pro-
tection ensured by our Constitution would be severely
hampered. And the integrity of the judicial system and
the respect for the rule of law established by our Con-
stitution would be strained because we would be
ignoring the very rationale for the Fifth Amendment’s
existence. We cannot permit the government’s comments
to pass without consequence under these circumstances.
We must vacate Hills’s conviction.
That does not mean, however, that Hills will necessarily
walk free. Because Hills’s convictions are being vacated
44 Nos. 09-2151, 09-2152 & 09-2153
due to the government’s improper references to the
invocation of the Fifth Amendment right against self-
incrimination, there is no double jeopardy bar to
her retrial. United States v. Doyle, 121 F.3d 1078, 1083-86
(7th Cir. 1997). In Doyle, we squarely addressed whether
the prosecution’s reference to the Fifth Amendment in
closing arguments amounts to misconduct that would
bar retrial. 121 F.3d at 1086. We explained that our
circuit has implicitly rejected the idea that a prosecutor’s
intent to “prevail at trial by impermissible means” is
enough to bar retrial. Id. (internal quotation marks omit-
ted). Instead, we noted our position that the only mis-
conduct that bars retrial is “the prosecution’s intent to
abort the trial . . . .” Id. (emphasis added). We declined
to determine expressly our position, however, because
Doyle did not present evidence that the prosecutorial
misconduct at issue in his case was designed to secure
a victory by resorting to impermissible tactics. Id.
We also decline to elaborate on this issue today.
Instead, we find that because the government’s references
to the Fifth Amendment, although improper, likely were
intended to refer to Tylman’s use of that Amendment,
there was no deliberate intent to secure a victory by
using impermissible tactics. Because we have already
addressed Hills’s sufficiency of the evidence claims and
found them to be lacking in merit, there are no other
obstacles to the government’s retrial of Hills. See id. at
1083. Her convictions will be vacated and remanded.
Nos. 09-2151, 09-2152 & 09-2153 45
I. Motion to Sever
Finally, Hills complains that the district court erred in
denying her motion to sever her case from that of her co-
defendants. Because we are vacating her convic-
tions and remanding her case, we need not address
this argument. When Hills is retried, she will stand
trial alone. Therefore, any potential error in denying
her motion to sever is rendered moot by our decision
today.
J. Release Pending Appeal
Prior to oral argument in this case, Tylman filed a
motion for release pending appeal. That motion was
ordered to be taken with the case. Because we affirm
his conviction today, we deny Tylman’s motion as moot.
III. C ONCLUSION
We A FFIRM Tylman’s and Winters’s convictions.
We V ACATE Hills’s conviction and R EMAND for further
proceedings.
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