United States v. Michael Han ( 2020 )


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  • United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued March 10, 2020                  Decided June 19, 2020
    No. 18-3081
    UNITED STATES OF AMERICA,
    APPELLEE
    v.
    MICHAEL SANG HAN,
    APPELLANT
    Appeal from the United States District Court
    for the District of Columbia
    (No. 1:15-cr-00142-1)
    John August Boeglin, appointed by the court, argued the
    cause for appellant. With him on the briefs were Kevin King,
    Michael J. Gaffney, and Tarek J. Austin, all appointed by the
    court.
    Elissa Hart-Mahan, Attorney, U.S. Department of Justice,
    argued the cause for appellee. With her on the brief were
    Alexander P. Robbins, Attorney, and Jessie K. Liu, U.S.
    Attorney at the time the brief was filed. Elizabeth Trosman,
    Assistant U.S. Attorney, entered an appearance.
    Before: HENDERSON, GARLAND and MILLETT, Circuit
    Judges.
    2
    Opinion for the Court filed by Circuit Judge GARLAND.
    GARLAND, Circuit Judge: After a seven-day jury trial,
    defendant Michael Han was convicted of tax evasion in
    connection with his 2010 and 2011 individual tax returns. As
    chief executive of a recycling technology company, Han
    solicited millions of dollars from investors Frank Carlucci and
    James Russell. In the tax years charged, Han spent much of that
    company money on personal expenses. He also used it to pay
    down debt he owed the company for spending yet more
    company money on himself between 2004 and 2009. Han failed
    to report as income the corporate funds he converted to his
    personal benefit.
    On appeal, Han challenges several rulings by the district
    court and the conduct of both the prosecution and his own
    counsel. We reject each challenge and affirm the judgment of
    the district court.
    I
    Han was the founder and chief executive of Envion, Inc., a
    recycling technology company that never sold any recycling
    technology and never earned any revenue. From 2004 to 2009,
    Han spent millions in investor funds on personal expenses,
    including Porsche sports cars. See Appendix (A.) 487-503.
    Neither Han nor Envion filed tax returns for any of those years
    until 2010, when prompted by an IRS notice about the
    delinquency. As Han turned to preparing his and the company’s
    returns, he learned from his accountants that his personal
    expenditures made with corporate funds could potentially be
    treated either as “taxable compensation” or as “a loan [from
    Envion] to the shareholder[, Han].” Supplemental Appendix
    (S.A.) 130 (accountant testimony). If treated as a loan, the
    money would not be taxed, but Han would have to repay it in the
    3
    future.
    Id. He opted
    to treat the personal expenditures as
    shareholder loans.
    At roughly the same time, Han solicited a further $22
    million from two of his existing investors, Frank Carlucci and
    James Russell. Although Carlucci and Russell thought they
    were providing the funds to Envion, see S.A. 73, 114-15, Han
    instead had them wired to his personal accounts, see S.A. 159,
    165. He then used those funds to pay down his shareholder loan
    balance and make further personal expenditures, including the
    purchase of a Ferrari and renovations on his Palm Beach home.
    See S.A. 175, 198. In light of Han’s failure to report his
    conversion of corporate funds as income, the IRS ultimately
    concluded that Han had avoided paying $1,133,784 in taxes in
    2010 and $3,822,243 in 2011.
    Han was tried for tax evasion in connection with his 2010
    and 2011 personal tax returns. Although Han did not himself
    testify, the heart of his defense was the claim that he had a
    good-faith belief that the funds from Carlucci and Russell were
    personal loans, which would not have been taxable. The jury
    convicted Han on two counts of tax evasion, and the district
    court sentenced him to 48 months’ imprisonment.
    On appeal, Han mounts four challenges to his convictions.
    He argues that: (1) the district court admitted evidence that was
    irrelevant and improperly showed prior “bad acts”; (2) the
    government improperly appealed to “class prejudice” throughout
    the trial; (3) the district court erred in declining to give Han’s
    preferred theory-of-the-defense instruction; and (4) his trial
    counsel was ineffective. We address those challenges below.
    4
    II
    Han’s principal contention is that the court wrongly
    permitted the government to introduce evidence that was not
    relevant to the 2010 and 2011 tax evasion charges, in violation
    of Federal Rule of Evidence 402. See FED. R. EVID. 402
    (“Irrelevant evidence is not admissible.”). Han further maintains
    that the evidence was instead introduced to show prior bad
    conduct, in order to prove his bad character and a propensity to
    act in accordance with that character, in violation of Rule
    404(b). See FED. R. EVID. 404(b)(1) (“Evidence of a crime,
    wrong, or other act is not admissible to prove a person’s
    character in order to show that on a particular occasion the
    person acted in accordance with the character.”). “We review
    a district court’s evidentiary rulings for abuse of discretion,”
    United States v. Alexander, 
    331 F.3d 116
    , 121 (D.C. Cir. 2003),
    and we find none.
    1. We start with the evidence of Han’s expenditures from
    2004 to 2009 and with his personal tax returns for those years.
    Han maintains that there was no reason to introduce evidence of
    any of that past conduct. To show tax evasion in 2010 and 2011,
    he says, it would have sufficed to show that he converted
    corporate funds to personal use in 2010 and 2011. To the extent
    that Han used corporate funds to pay down his debt to Envion
    for earlier personal spending, he argues, the government did not
    need to demonstrate how that debt arose. As he says, it would
    have been unlawful for him to fail to report the repayments
    regardless of whether he had previously used Envion’s money
    on charitable donations or on flashy cars.
    This argument is true enough -- as far as the government’s
    obligation to show the existence of a tax deficiency goes. But
    it ignores the issue of Han’s intent. In a tax-evasion case, the
    government’s burden on that issue is steep. The prosecution
    5
    was required to demonstrate beyond a reasonable doubt that Han
    acted willfully -- “that the law imposed a duty on the defendant,
    that the defendant knew of this duty, and that he voluntarily and
    intentionally violated that duty.” Cheek v. United States, 
    498 U.S. 192
    , 201 (1991); see United States v. Khanu, 
    662 F.3d 1226
    , 1229 (D.C. Cir. 2011).
    The evidence in controversy was central to that issue.
    Although Han makes much of the fact that the other returns
    introduced were for “earlier” tax years, he did not file them until
    2010 and 2011 -- roughly contemporaneously with the conduct
    charged. Compare, e.g., A. 436 (Han’s 2006 tax return, filed
    June 2, 2011), with A. 368 (Han’s 2010 return, filed November
    14, 2011). And it was in the process of characterizing his 2004-
    2009 expenditures for those other returns, the government
    argued, that Han learned he could not defensibly characterize
    splurges on flashy cars (and other items) as business
    expenditures: It gave him “sort of a tutorial, [an] education
    session.” S.A. 230 (government’s closing argument). Han
    learned that he would have to find a different characterization if
    he wanted to avoid paying taxes on that and similar spending
    going forward. In other words, he developed “knowledge of
    [his] tax obligations” and began willfully planning to defy them.
    S.A. 231 (government’s closing argument).
    Accordingly, the 2004-09 evidence was both relevant to the
    2010-11 charges under Rule 402 and admissible under Rule
    404(b). See FED. R. EVID. 404(b)(2) (providing that evidence of
    prior crimes, wrongs, or other acts “may be admissible for
    another purpose, such as proving . . . intent, . . . plan, [and]
    knowledge”). As we have explained, “[i]ntent and knowledge
    are . . . well-established non-propensity purposes for admitting
    6
    evidence of prior crimes or acts.” United States v. Bowie, 
    232 F.3d 923
    , 930 (D.C. Cir. 2000).1
    Han further insists that, even if the 2004-09 evidence were
    relevant and admissible, its probative value was “substantially
    outweighed by the danger of . . . unfair prejudice.” FED. R.
    EVID. 403. Again, we may overturn a district court’s conclusion
    on that ground only if we find an abuse of discretion. United
    States v. Gartmon, 
    146 F.3d 1015
    , 1020 (D.C. Cir. 1998). We
    find nothing even close. To the contrary, the district court “took
    the appropriate steps to minimize the danger that the jury would
    use the 404(b) evidence for an improper purpose,” United States
    v. Pettiford, 
    517 F.3d 584
    , 590 (D.C. Cir. 2008), warning the
    government not to “linger on the more salacious details,” A. 88,
    and issuing an appropriate precautionary instruction, A. 328.
    2. Han also charges that the court erred in admitting
    evidence that he made misrepresentations to investors about
    Envion’s economic prospects. As we noted above, Han’s
    principal defense was the claim that Carlucci and Russell had
    loaned $22 million to him personally, rather than to Envion.
    Han agrees, of course, that the government was entitled to
    dispute that characterization with evidence of how Carlucci and
    Russell thought the funds would be used. But, he says, “[w]hile
    the representations that Carlucci and Russell relied on in wiring
    money to Mr. Han were relevant, evidence that these statements
    were misrepresentations was not.” Han Br. 28.
    1
    The district court did not address the government’s argument
    that the evidence was not covered by Rule 404(b) at all because it was
    “intrinsic” to the charged offenses. See 
    Bowie, 232 F.3d at 929
    .
    Because we conclude that the evidence was admissible under Rule
    404(b) in any event, we also have no need to address whether it was
    intrinsic.
    7
    We disagree. Whether a borrower has the intent and ability
    to repay a purported loan is a factor in judging whether the
    transaction is in fact a loan for tax purposes. See United States
    v. Swallow, 
    511 F.2d 514
    , 519 (10th Cir. 1975) (holding that
    “loans obtained in bad faith and without an intent to repay them”
    are taxable income); see also, e.g., United States v. McGinn, 
    787 F.3d 116
    , 126-27 (2d Cir. 2015); Welch v. Comm’r, 
    204 F.3d 1228
    , 1230 (9th Cir. 2000). Here, the government introduced
    the challenged evidence to show that Han knew the deals he told
    the investors would be the source of their repayment would
    never be consummated -- and hence that the investors’ money
    could not have constituted loans to Han because he had no intent
    or ability to repay them. A. 204-05; see also A. 205
    (government proffer that Han “did not have any independent
    money”).
    Finally, we note that the district court once again took
    exemplary care to insist that testimony on this subject be
    “brief[]” and “very tailored,” and “to limit [how the
    government] could argue” the evidence in its closing. A. 208-
    09. We therefore conclude that the probative value of this
    evidence was not outweighed -- substantially or otherwise -- by
    the danger of unfair prejudice. See FED. R. EVID. 403.
    III
    As a companion to his argument that the government’s
    evidence was unduly prejudicial, Han alleges that the
    prosecution engaged in “a persistent appeal to class prejudice”
    from start to finish. Han. Br. 37 (quoting United States v. Stahl,
    
    616 F.2d 30
    , 33 (2d Cir. 1980)). He emphasizes in particular
    that the government walked its witnesses through expenditures
    that it had excluded from its calculation of Han’s tax liability.
    Han Br. 35, 36.
    8
    But the government stayed within permissible bounds. To
    establish the existence and extent of the tax deficiency, the
    prosecution sought to show that the items on which Han spent
    corporate funds could not possibly be characterized as business
    expenses. As the district court rightly observed, that necessarily
    entailed showing the nature of those expenses and arguing, for
    example, that expensive sports cars could not have been
    company vehicles. See A. 176-77. As for the expenses
    excluded from the final calculation, the government brought
    them up to demonstrate where it drew the line -- and how
    conservatively it did so. As the prosecutor put it in closing, the
    point was to show that the government’s case was “focus[ed] on
    the things that are pretty clear and obvious,” and that the
    government had not overcharged Han. A. 358.
    IV
    Next, Han argues that the district court erred in its handling
    of his theory-of-the-defense instruction. Included in the
    defense’s proposed instruction was a sentence stating that “Mr.
    Han believed that the funds he received in 2010 could legally be
    treated as non-taxable personal loans.” A. 276. The district
    court struck that sentence on the theory that, “since [Han] didn’t
    testify, we don’t know what he believed.” A. 295-96. The
    government agrees with Han that this was not a valid basis for
    refusing to include that statement. U.S. Br. 51 (citing United
    States v. Hurt, 
    527 F.3d 1347
    , 1351 (D.C. Cir. 2008)). And
    although the remainder of the instruction made clear that Han
    was mounting a defense based on his claimed good-faith belief,
    it did not include the point that loans are not taxable.
    Nonetheless, any error on this front was harmless. “[I]n
    light of all the circumstances -- the language of the instructions,
    the arguments of counsel, and the evidence itself” -- there was
    no real risk of confusion about Han’s theory of the case or its
    9
    legal basis. United States v. Lemire, 
    720 F.2d 1327
    , 1339 (D.C.
    Cir. 1983). The government’s expert witness repeatedly
    testified that personal loans are not taxable. See S.A. 187-89,
    215-16. The defense’s expert witness testified that personal
    loans are not taxable. See A. 263. And as Han’s counsel
    stressed during closing arguments, there was no disagreement on
    the point. See S.A. 270. Moreover, as Han further
    acknowledged on appeal, “‘the incredibility of [a defendant’s]
    claim that he considered the transactions to be loans’ can
    provide a basis to find the failure to instruct harmless.” Han Br.
    47 (quoting United States v. Black, 
    843 F.2d 1456
    , 1462 (D.C.
    Cir. 1988)). On the record of this trial, Han’s claim that the $22
    million from Carlucci and Russell were personal loans to him,
    rather than investments in the company, falls well within the
    “incredible” category.2
    V
    Finally, Han argues that he received ineffective assistance
    of counsel. The essence of this claim is that his attorney, over
    the warnings of the district court, opened the door to the
    otherwise inadmissible fact that Han has been held liable in a
    civil suit brought by Carlucci. See A. 189-196; cf. United States
    v. Grey, 
    891 F.3d 1054
    , 1058-60 (D.C. Cir. 2018) (observing
    2
    See, e.g., S.A. 73 (Russell’s testimony that he did not, and
    would not, have given Han a personal loan); S.A. 114-15 (Marcia
    Carlucci’s testimony that her husband, who was too ill to testify,
    would not have given Han a $20 million loan); A. 481-85 (global
    promissory note drafted by Han for Carlucci characterizing Envion as
    the debtor for the relevant amount); A. 464-69 (global promissory note
    for Russell characterizing Envion as the debtor for the relevant
    amount); A. 254-55 (Han’s stipulation in a civil suit that Carlucci
    provided the $20 million “to Envion” and that “Han [was] not a party
    to the promissory note” (emphases added)).
    10
    that juries are “apt to give exaggerated weight to a judgment,”
    especially where “the civil judgment and the criminal charges
    involved virtually identical conduct” (internal quotation marks
    omitted)). When ineffectiveness “is raised for the first time on
    appeal, as it is here, our general practice is to remand to the
    district court for an evidentiary hearing unless it is clear from
    the record that counsel was or was not ineffective, or that the
    supposed defect in representation amounted to a strategic
    choice.” United States v. Weaver, 
    281 F.3d 228
    , 233-34 (D.C.
    Cir. 2002).
    In this case, we find the issue clear enough to decide for
    ourselves. A defendant claiming ineffective assistance must
    both demonstrate that “counsel’s representation fell below an
    objective standard of reasonableness,” Strickland v. Washington,
    
    466 U.S. 668
    , 688 (1984), and show “a reasonable probability
    that, but for counsel’s unprofessional errors, the result of the
    proceeding would have been different,”
    id. at 694.
    Counsel’s
    choice here may or may not have been strategic,3 but we need
    not resolve that question. “[G]iven the extensive evidence of
    [his] guilt,” 
    Grey, 891 F.3d at 1062
    , Han has no colorable
    argument that he was prejudiced by his attorney’s decision.
    Although we will refrain from reciting the entirety of the
    government’s case to that end, see, e.g., supra note 2, we will
    stress one of the most damning parts: Han’s own stipulation, in
    his answer to Carlucci’s civil suit, that “Mr. Carlucci provided
    $20 million to Envion,” and that “Han [was] not a party to the
    promissory note.” A. 516-17 (emphases added). (Han did not
    3
    The civil judgment came up in connection with defense
    counsel’s cross-examination of Kyle Harkrader, Han’s ex-wife, who
    testified against him and who had previously settled with Carlucci.
    See A. 189-96. As counsel explained at the time, his goal was to
    suggest that Harkrader might have had reason to deflect responsibility
    onto Han. A. 190-91.
    11
    object to the admission of this stipulation, only to the fact of the
    judgment of liability.) So much for Han’s claim that the money
    Carlucci provided was just a personal loan to Han.
    VI
    For the foregoing reasons, the judgment of the district court
    is
    Affirmed.