United States v. Steven K. Tolstedt , 82 F. App'x 506 ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2036
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Steven K. Tolstedt, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 24, 2003
Filed: December 10, 2003
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Before RILEY, McMILLIAN, and SMITH, Circuit Judges.
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PER CURIAM.
After a jury found Steven Tolstedt guilty of willful failure to file tax returns,
in violation of 26 U.S.C. § 7203, the district court1 sentenced him to 10 months
imprisonment and 1 year supervised release, and ordered him to pay restitution of
$26,501. Tolstedt appeals, and, having reviewed each of his claims of error, we
affirm.
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The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
Specifically, we reject Tolstedt’s speedy-trial claims, because he never asserted
his right to a speedy trial, he agreed with the government’s first request for a
continuance, and he makes no showing of prejudice from the eight-month delay
between his arraignment and trial. See United States v. Nazarenus, 983 F.3d 1480,
1483-84 (8th Cir. 1993). We also find that the evidence, considered in a light most
favorable to the prosecution, amply supports the jury’s verdict. See United States v.
Brooks, 174 F.3d 950, 955 (8th Cir. 1999) (“willfulness” in criminal tax context
requires proof that defendant knew of and intentionally violated legal duty); United
States v. Gleason, 726 F.2d 385, 387-88 (8th Cir. 1984) (per curiam) (elements of
§ 7203 violation; good faith disagreement with law does not negate willfulness, and
circumstantial evidence is sufficient to prove willfulness). In addition, even assuming
Tolstedt preserved his objection to the district court’s tax-loss finding at sentencing,
we conclude that the court’s finding, which was supported by the testimony of an
Internal Revenue Service Agent, was not clearly erroneous. See U.S.S.G. § 2T1.1,
n.1; United States v. Hart, 324 F.3d 575, 578 (8th Cir. 2003) (standard of review).
We also conclude that, contrary to Tolstedt’s contentions, it was permissible for the
government to investigate the offense, see United States v. Rosnow, 977 F.2d 399,
409 n.17, 413 (8th Cir. 1992) (per curiam), cert. denied, 507 U.S. 990 (1993), and to
charge Tolstedt by information, see 26 U.S.C. § 7203; Fed. R. Crim. P. 7(a)
(concerning use of indictment and information).
The balance of Tolstedt’s arguments are either frivolous, cumulative, or do not
rise to the level of plain error. See United States v. Guerra, 113 F.3d 809, 816 (8th
Cir. 1997) (when issue is not raised at trial, review is only for plain error, which
occurs when obvious error effects defendant’s substantial rights); United States v.
Robinson, 110 F.3d 1320, 1326 (8th Cir.) (reversal under plain-error standard for
arguably improper closing argument would be proper only if error seriously affected
fairness, integrity, or public reputation of judicial proceedings), cert. denied, 522 U.S.
975 (1997); United States v. NB, 59 F.3d 771, 774 (8th Cir. 1995) (finding no
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miscarriage of justice resulted which justified reversal based on admission of
unobjected-to hearsay testimony). Accordingly, we affirm.
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