United States v. Greene

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 16, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 06-5063
(D.C. No. 04-CR-209-01-HDC)
v.
(Northern District of Oklahoma)
MICHAEL DON GREENE,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN, HOLLOWAY and HOLMES, Circuit Judges.
Defendant-appellant Michael Don Greene was convicted by a jury of the two
counts against him: Count One charged evasion of payment of taxes in violation of 26
U.S.C. § 7201; Count Two charged subscribing to a false tax document in violation of 26
U.S.C. § 7206(1). Defendant was sentenced to 60 months on Count One and 10 months
on Count Two, to be served consecutively. He also was fined $250,000 on each count
and ordered to pay a special assessment of $100 on each count. Defendant now appeals
his convictions and sentence.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I
Defendant Greene had been prosecuted in 1996 under Internal Revenue Code
(IRC) § 7206(1) for filing a false tax return for the tax year 1990. He pleaded guilty and
served a term of imprisonment of about eighteen months. He was released from prison on
supervised release in early 1998.
Count One of the indictment in the current case alleged that during the time from
August 1998 to November 29, 2002, Defendant willfully attempted to evade payment of
“a large part of the income tax due and owing by him” for the calendar years 1990, 1991,
1994 and 1995 in an amount of more than $641,000 in three ways: “by concealing and
attempting to conceal . . . the nature and extent of his assets, by placing funds and
property in the names of nominees, and by filing a false and fraudulent offer in
compromise (supported by a false declaration under oath on Form 433-A).” 1
Count Two of the Indictment focused on the allegation of a false declaration under
oath, charging it as a separate crime under 26 U.S.C. § 7206(1). That count more
specifically charged that the sworn Form 433-A, which Defendant submitted on January
19, 2000, called for the Defendant to list all of his assets, but that he knowingly omitted
from the form four specific assets. These omitted assets included three bank accounts,
which were described by the name of the bank, the account number and the balance as of
1
The allegations were later narrowed to cover only the years 1990 and 1991. I
App. 106.
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the date of the sworn statement (which totaled more than $290,000). The fourth omitted
asset was described as a note in the amount of $85,000 payable to Defendant doing
business as VK Investments.
Trial of this case took about two weeks, with almost thirty witnesses testifying,
including some two dozen for the prosecution. Because the issues on appeal can be
understood without an exhaustive review of that evidence, we will provide only a general
description of Defendant’s conduct as it was established at trial. The allegations of Count
Two concerning bank accounts and their respective balances on the date of the
Defendant’s submission of the false Form 433-A were proven through one IRS special
agent’s testimony that bank records, admitted in evidence by stipulation in the
government’s case, showed that the accounts had the balances as alleged. The records
showed that one of the three accounts was in the name of Defendant Greene doing
business as Delta Trading Group, and the other two were joint accounts in the names of
Defendant and Virginia McAlister, who is Defendant’s mother. 2
As to the note specified in Count Two, the government called Ms. Diana Ness,
formerly Randolph, who had been in a romantic relationship with Defendant from
sometime in 1998 to December 2000. During this time, Defendant made a loan of
2
This seems to be the case, looking at questions asked of Defendant’s former
accountant, Mr. Raymond Gardner, who testified for the government. III App. 907-08;
910-11. Elsewhere in the record, however, it appears that one of the accounts might have
been a joint account for Defendant and his former girlfriend. The jury had the actual
bank records before them, but our record does not include those exhibits. In any event,
no issue is raised about this detail, and it seems to be immaterial.
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$85,000 to her so that she could buy a house. The transaction was duly documented and
Ms. Ness executed a note and a mortgage to secure the debt. Although Defendant was
extremely lenient about her payment schedule, Ms. Ness testified that she expected to
repay the loan and did begin making monthly payments in early 2001.3
The government produced considerable evidence to show that Defendant had
concealed assets, in part by placing assets in the names of nominees, as alleged in Count
One. Although it is not entirely clear from the record (and in any event is not material to
the charges), it appears that the source of much of Defendant’s income was his business,
which was the distribution of oilfield couplings. Several employees of the business
testified that the company carried on rather normally during Defendant’s incarceration.
In addition to depositing funds in accounts that he held jointly with his mother or
in the name of a company of which he was sole proprietor, as described supra, Defendant
attempted to conceal very substantial sums as business expenses, which he converted to
cash. Before going to prison, Defendant had arranged for one of his suppliers to give him
a number of blank invoices. Defendant filled out some of these invoices to reflect false
charges against his company, when in fact there had been no legitimate expense.
Company checks were then written in payment of these false invoices. Defendant
delivered or arranged delivery of these checks to Sultana Exchange, a check-cashing
3
Defendant suggested that re-payment prospects were highly doubtful and that the
jury should therefore have found reasonable doubt as to whether he was willfully failing
to disclose this asset. But this argument had the obvious flaw that it did not account for
the Defendant’s interest as mortgagee.
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service in Houston where he had done business before and whose proprietor apparently
cashed any check Defendant produced.4 When the proprietor, Mr. Ruiz, died during the
course of these transactions, the practice continued as his widow operated the business
with the assistance of a long-time employee, Mr. Franco. Both the widow and Mr.
Franco testified in the government’s case.
Defendant also used the services of Sultana Exchange to cash company checks
written to a number of other businesses unrelated to his company. In these instances,
Defendant simply used the name of an existing company as payee on the check, then
relied on the compliant practices of Sultana Exchange to cash the check himself.
Representatives of several companies whose names had been used in this way testified at
trial. Each of these witnesses identified his company’s name on one or more checks
written by Defendant and testified that the company had done no business to warrant
payment and had not, in fact, received the checks or the proceeds thereof.
IRS case agent Scott Wells prepared exhibits summarizing the checks Greene had
cashed through Sultana Exchange. His conclusion was that during the time covered by
the indictment, Defendant had cashed checks totaling $742,190.70. All checks were for
amounts less than ten thousand dollars and thus not subject to cash transaction reporting
requirements.
4
It appears that during his incarceration Defendant either had an employee mail
checks to Sultana, or had the checks presented by Howard Bring, the business associate
who had supplied the blank invoices. Mr. Bring testified to presenting some checks, but
said that he did not receive the proceeds. The indictment alleged only acts occurring after
Defendant’s release from prison.
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II
On appeal Defendant presents a four-pronged attack on the indictment. He
contends that the prosecution violated his double jeopardy rights, that the indictment was
multiplicitous, and that the indictment was duplicitous. Additionally, Defendant argues
that by bringing the indictment the government violated the terms of the plea agreement
he had entered into in the 1996 case.
A
Defendant contends that the indictment was multiplicitous because he was
“essentially convicted in both counts of committing a single act, filing a false Form 433-
A . . . .” Opening Br. of Aplt. at 39.5 This court reviews claims of multiplicity de novo.
United States v. Nickl, 427 F.3d 1286, 1301 (10th Cir. 2005).
“Multiplicity refers to multiple counts of an indictment which cover the same
criminal behavior. . . . . In reviewing multiplicity claims we look to the language of the
statute to determine whether Congress intended multiple convictions and sentences under
the statute.” United States v. Meuli, 8 F.3d 1481, 1485 (10th Cir. 1993) (internal citations
and quotation marks omitted). “If Congressional intent cannot be discerned, we apply the
well-settled ‘rule of statutory construction’ set forth in Blockburger v. United States, 284
U.S. 299 (1932) . . . .” United States v. Morehead, 959 F.2d 1489, 1506 (10th Cir. 1992),
aff’d on reh’g en banc sub nom. United States v. Hill, 971 F.2d 1461 (10th Cir. 1992).
5
This contention ignores the fact that the jury specifically found that Defendant had
committed the offense charged in Count One by three means, not merely by filing the
false form. But we consider the contention anyway.
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Under the Blockburger test, “[t]he same act or transaction may constitute separate
offenses if each offense requires some fact not required to establish the other.” Meuli, 8
F.3d at 1485. The government may submit multiplicitous charges to the jury, but if a
defendant is convicted of both charges, the district court must vacate one of the
convictions. See Ball v. United States, 470 U.S. 856, 864-65 (1985); Nickl, 427 F.3d at
1301.
In several closely related contexts – challenges based on double jeopardy,
challenges based on multiplicity, and contentions regarding the propriety in a given case
of instructing the jury on lesser included offenses – the courts have considered the
Internal Revenue Code’s criminal tax enforcement provisions at issue here. Essentially
the same Blockburger analysis has often been employed in these three contexts, all of
which are raised by Defendant’s counsel in this appeal, albeit in his extremely conclusory
fashion. We are not aware of any case in which a court has resolved the question at the
first step, finding clear evidence of Congressional intent without resort to the Blockburger
analysis. See United States v. Kaiser, 893 F.2d 1300, 1304 (11th Cir. 1990) (finding
statutory language of sections 7201 and 7206(1) lacked “clear and unambiguous language
allowing cumulative convictions and punishments”).
Applying the Blockburger test, we are instructed not to focus on the specific facts
of the case, but to examine the statutory language. Schmuck v. United States, 489 U.S.
705, 715-21 (1989). In Schmuck, the Court said, inter alia, that the elements test is
“certain and predictable” because it “involves a textual comparison of criminal statutes
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and does not depend on inferences that may be drawn from evidence introduced at trial . .
. .” 489 U.S. at 720.
The question, then, is whether each offense, Count One and Count Two, required
“some fact not required to establish the other,” as we put it in Meuli, 8 F.3d at 1485.
As to Count One, charging evasion of payment of taxes in violation of IRC §
7201, the Court has said that there are three elements of the crime of evasion under
section 7201: willfulness, the existence of a tax deficiency, and an affirmative act
constituting an evasion or attempted evasion of the tax. Sansone v. United States, 380
U.S. 343, 351 (1965).
As to Count Two, charging violation of IRC § 7206(1), the jury was instructed that
the government must prove five elements: first, “that the defendant made, signed or filed
a form 433-A, statement of assets, together with his offer-in-compromise, that contained
false information or omitted information as to a material matter”; second “that the
defendant knew that this information was false”; third, “that the statement was material”;
fourth, “that the document(s) contained a written declaration that it was being signed
subject to the penalties of perjury”; and fifth, that defendant acted willfully in filing the
false document. I Aplt. App. at 121-22.6
It is readily apparent that each offense requires proof of at least one fact not
6
We consider the elements of the offense charged in Count Two as they were
explained to the jury in the trial court’s instructions because neither party has suggested
any error therein and the trial court’s formulation appears to be consistent with the
statutory language.
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required by the other. The evasion charge, Count One, requires proof that a substantial
tax was owed and that the defendant intended to evade payment of that tax; neither of
these are required to prove Count Two. Count Two requires proof of knowingly signing a
false statement under oath, which is not required to prove the evasion count.7
The two offenses were not the same; we therefore hold that the indictment was not
multiplicitous.
B
Defendant contends that Count One was duplicitous because it charged both
evasion of taxes and submitting a false declaration under oath. This argument is without
merit. Duplicity is the joining of two or more offenses in one count, thus creating the
possibility that the jury could convict without agreeing unanimously on guilt for the same
offense. United States v. Haddock, 956 F.2d 1534, 1546 (10th Cir. 1992). But where the
evidence is sufficient to prove one of two charged offenses, even a general verdict may be
upheld. See United States v. Haber, 251 F.3d 881, 888-89 (10th Cir. 2001) (citing Griffin
v. United States, 502 U.S. 46, 56-57 (1991)). In this case, of course, the trial court
extended more than the minimal protection to the defendant by submitting a special
verdict form, which elicited specific findings that Defendant was guilty of evasion as
charged in Count One because he had concealed assets. Accordingly, there is no error
and no possible prejudice.
7
Because the jury specifically found Defendant guilty of evading taxes by
concealing his assets and by placing assets in the names of nominees, the allegation in
Count One regarding the false sworn statement may be regarded as mere surplusage.
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C
Defendant contends that he was subjected to double jeopardy in violation of the
Fifth Amendment. His argument is based on the fact that he had been previously
convicted of filing a false tax return for 1990, in violation of IRC § 7206. He was not
charged with filing a false tax return in the current prosecution, however, but with
attempting to evade the payment of the tax deficiency for that year (and 1991) by
concealing his assets and submitting an offer in compromise on Form 433-A which
included materially false statements about his financial status. Our analysis of his
multiplicity argument, supra, has shown that the tax evasion charged in Count One was
not the same offense as that charged in Count Two of the current case, which was the
filing of the false Form 433-A. By the same analysis, the evasion charged in Count One,
based on Defendant’s actions from 1998 to 2002, is not the same offense for which he
was prosecuted in 1996, which was filing a false tax return for tax year 1990.
Greene fails to overcome the obvious differences between the charge to which he
pleaded guilty in the 1996 case and the charges in the instant case, which are based on his
later conduct. He avers that he was ordered to pay restitution for the same taxes in the
previous prosecution. (He does not aver that he in fact did pay restitution.) But he does
not allege that the government is trying to collect the overdue and evaded taxes twice, nor
does he provide any authority to support the implication that the restitution portions of the
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two judgments violate his double jeopardy protections. 8 We therefore reject this
argument.
D
Mr. Greene also contends that his prosecution in this matter violated the
government’s commitments made to him in the 1996 plea agreement, which resolved the
previous prosecution. We review de novo whether the government has breached a plea
agreement. See United States v. Werner, 317 F.3d 1168, 1169 (10th Cir. 2003). General
principles of contract law govern the prosecution’s obligations under a plea agreement.
See United States v. Guzman, 318 F.3d 1191, 1195 (10th Cir. 2003). We examine the
express language of the agreement to identify both the nature of the government’s
promise and the defendant’s reasonable understanding of this promise at the time of the
entry of the guilty plea. See United States v. Rockwell Int'l Corp., 124 F.3d 1194, 1199
(10th Cir. 1997). “Where a plea is predicated in any significant degree on a promise or
agreement, such promise or agreement must be fulfilled to maintain the integrity of the
plea.” United States v. Greenwood, 812 F.2d 632, 637 (10th Cir. 1987) (quoting United
8
Defendant makes an assertion (unfortunately, but typically, a bare assertion rather
than an argument) that he was subjected to double jeopardy because “the charged conduct
had been factored into his earlier sentence in 1998.” Opening Br. of Aplt. at 38. If that
were true, it would not establish a double jeopardy violation. See Witte v. United States,
515 U.S. 389, 395-406 (1995). But the assertion manifestly is untrue and even non-
sensical. The charged conduct in this case did not occur until after Defendant had served
his term of incarceration under the sentence imposed in the earlier case. What Defendant
apparently means and does say in the following sentence is that the court in deriving the
sentence in the earlier case under the sentencing guidelines, took into account the tax
deficiency for the years 1989 through 1991. But the suggestion that this subjected him to
double jeopardy is similarly untenable because of the holding of Witte.
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States v. Reardon, 787 F.2d 512, 516 (10th Cir. 1986)).
Greene relies on this provision from the 1996 plea agreement:
(B) THE GOVERNMENT’S OBLIGATIONS
Only if the defendant fully satisfies his obligations outlined in this
pleading, the government agrees:
FURTHER PROSECUTION
It shall not initiate additional criminal charges against the defendant
in the Northern District of Oklahoma that, as of the date of the defendant’s
acceptance of this agreement, are known to the government and arise from
its investigation of the defendant’s actions and conduct giving rise to the
instant Information. The defendant understands, however, that this
obligation is subject to all “Limitations” set forth below and that this Office
is free to prosecute the defendant for any illegal conduct (i.e., violation of
federal criminal laws) not discovered by or revealed to the government
during its investigation or occurring after the date of this agreement.
Specifically, the government agrees that, as a result of this agreement, it
will be barred from criminal prosecution of the defendant for any violations
of the income tax laws for the calendar years 1989, 1991, 1992, 1993 and
1994.
I Aplt. App. 14-15.
Defendant points to the last sentence of the agreement, which favors his position,
and ignores all other language. But as noted, plea agreements are contracts to be
interpreted according to the principles of contract law, Guzman, 318 F.3d at 1195, and a
cardinal principle of contract law is to construe agreements so as to give effect to every
term, if possible.
The government clearly promised to refrain from further prosecution for conduct
“known to the government” at the time. The current prosecution is, of course, based on
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Defendant’s conduct beginning more than two years after the date of the agreement. We
find no support for Defendant’s contention that the government expressed the intention in
the 1996 agreement that it would be completely barred from prosecuting Defendant for
his future efforts to evade payment of the taxes he owed for 1990 and 1991, no matter
what nefarious and criminal means the Defendant might employ to accomplish the
evasion. Indeed, the agreement explicitly provides that the government is “free to
prosecute the defendant for any illegal conduct (i.e., violation of federal criminal laws)
not discovered by or revealed to the government during its investigation or occurring
after the date of this agreement.” (Emphasis added.) We hold that the plea agreement
was not breached by the government.
III
Mr. Greene’s next contention is that the evidence was insufficient to sustain the
conviction on Count One because the evidence failed to show that the IRS had made a
valid assessment and that there was a legitimate deficiency. The brief also includes some
statements regarding the element of willfulness, the point of which is not entirely clear.
We take it that Defendant is suggesting that the alleged failure to prove a legitimate
deficiency necessarily negated the possibility of finding willfulness. In any event,
because the evidence was sufficient to show that a substantial tax was owed, this
argument is without force.
We begin with the principle that the government in an evasion case is not required
to prove the exact amount of tax owed. See United States v. Mounkes, 204 F.3d 1024,
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1028 (10th Cir. 2000); United States v. Harrold, 796 F.2d 1275, 1278 (10th Cir. 1986).
Much of Defendant’s argument is defeated by this single point, for the argument
emphasizes certain inconsistencies and alleged technical problems with the notices of
deficiency and other communications that the IRS sent to Defendant in the course of
trying to collect the taxes he owed. Thus, Defendant contends that a valid assessment
must, according to the IRS’s regulations, be signed by an “assessment officer,” and that in
this case the government failed to show that the employee who signed one or more of the
assessments had been validly delegated the authority to do so.
But this is clearly a red herring. The technical requirements Defendant invokes
may be essential in civil collection actions such as the authorities Defendant cites, but
they are simply not required of the government in a prosecution like this for evasion. In
Mounkes, we explained that indirect methods of proving income are permitted because
direct proof requires the taxpayer’s voluntary retention of records, which is often
thwarted by the taxpayer. 204 F.3d at 1028. Because the government may have to resort
to indirect methods of proving income, it necessarily follows that the government is not
required to show the precise amount of tax owed, for the same reasons. In this case, the
government did not rely on the indirect method of proving income but instead introduced
considerable evidence from IRS employees regarding their efforts to calculate the tax
owed, and the issuance of notices and other communications to the Defendant in
connection with these efforts. Although the notices were inconsistent, the evidence was
more than sufficient to show that a substantial amount was owed – which, again, is all
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that is required – and that Defendant willfully acted to evade payment of his obligations
through the means charged in the indictment and found by the jury in response to the
special verdict form.9
IV
Defendant next contends that the trial court’s adverse rulings on several
evidentiary matters effectively denied him an opportunity to present his defense.
Defendant alleges the following as specific errors: the decision to exclude proffered
testimony of Mr. Michael Deeba, who was identified as an expert witness in the area of
taxation; the exclusion of the testimony of Mr. David Spicer; restrictions on defense
counsel’s cross-examination of Mr. Raymond Gardner; and restrictions of the direct
examination of defense witness Michael Blessington.
“The right to present a defense is a fundamental element of due process of law.
However, the right to present defense witnesses is not absolute. A defendant must abide
the rules of evidence and procedure. This includes standards of relevance and
materiality.” United States v. Bautista, 145 F.3d 1140, 1151-52 (10th Cir. 1998) (internal
citations and quotation marks omitted). We review evidentiary rulings of the district
court under the abuse of discretion standard. See United States v. Dowlin, 408 F.3d 647,
659 (10th Cir. 2005). “The question of whether a constitutional violation has occurred is
9
Former special agent William Ray Dingman testified that he and another agent
interviewed Defendant in his home in October 2001 regarding the offer in compromise
that Defendant had submitted. In the course of that interview, Dingman testified,
Defendant said that he “probably” owed “no more than $40,000.” III Aplt. App. 1090-91.
Even that very much under-estimated figure is clearly “substantial.”
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reviewed de novo.” Id.10
A
Defendant asserts that Mr. Deeba would have testified about three points: that
various notices sent from the IRS to Defendant during the relevant time were
inconsistent; that the IRS had not properly adjusted Mr. Greene’s tax liability because it
had failed to deduct costs of goods and expenses and had not allowed credit for tax
payments previously made on the same income by the corporate entity, MDG, Inc; and
that the innocent spouse relief granted to the former Mrs. Greene resulted in an increase
in his alleged tax liability without his knowledge. All of this, Mr. Greene argues on
appeal, should have been admitted to show that he had a good faith belief that he did not
owe additional taxes. This is the totality of the argument. It is not persuasive.
First, defendant does not address one basis of the trial court’s ruling regarding the
inconsistent notices. The judge accepted the government’s argument that the jurors could
determine for themselves that defendant had received notices stating different amounts as
the balance of taxes owed. We agree that the opinion evidence of an expert would not
meet the threshold requirement of being helpful to the jury on this point.
Additionally, as we read the trial judge’s oral comments the judge ruled that the
anticipated testimony was irrelevant for all of the purposes for which it was proffered.
10
Defendant’s brief does not show that the constitutional issue was presented to the
district court. Because we find the argument unavailing in any event, we review under
the de novo standard, rather than the much more rigorous plain error standard that appears
to be applicable.
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Defendant contends that the expert’s testimony should have been admitted as relevant to
his state of mind. As we understand it,11 the expert would have testified that Defendant
received a number of notices from the IRS which gave different figures for his tax
liability (a fact that had been shown by the government’s evidence by the time the
defense actually presented its case); that some of the income that the IRS was attributing
to Defendant had been reported by MDG, Inc., which had also paid taxes on those sums;
and that Defendant had negotiated an agreement in settlement of post-divorce litigation
with his ex-wife whereby she was to pay $250,000.00 on the couple’s joint tax liability
for one of the years in question, but that the former Mrs. Greene had instead obtained
from the IRS “innocent spouse” status which relieved her of most of the liability.
The expert, however, had not been advising Mr. Greene at the time of the events at
issue but was retained solely to testify at trial. Thus, Mr. Deeba could not have given any
testimony (even assuming it would otherwise have been admissible) about conversations
with Defendant or actions taken by Defendant that would actually have been probative of
Defendant’s state of mind. Instead, Defendant argued in the trial court that the testimony
would have been relevant “to a person’s state of mind, any person that would . . . .” But
the trial judge cut off this argument, noting that the relevant legal issue was Defendant’s
11
Because defense counsel did not give notice of the intent to call Mr. Deeba until a
few days before trial, the record consists only of the government’s motion in limine
(which addressed only the timeliness matter, as the defense still had not disclosed a
summary of the expected testimony, I Aplt. App. 55-57) and the transcription of oral
argument on the matter on the morning of trial. The record does not indicate that the
district judge excluded the testimony because of the untimely disclosures of the witness’s
identity and summary of expected testimony.
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wilfulness and that an objective, reasonable person standard did not apply. Defense
counsel conceded that point. I Aplt. App. at 225.
The trial judge also ruled that proffered expert testimony that the IRS had erred in
attributing to Mr. Greene income that had been recognized and reported by his corporate
entity was irrelevant because, as defense counsel conceded, this evidence would not have
supported a defense to the charge, and as with the other proposed areas of expert
testimony, the defense could not show Mr. Greene’s subjective good faith by the
testimony of an expert who had no dealings with Mr. Greene at the relevant time.
Defendant has not advanced anything more on appeal. Indeed, he presents no real
argument at all, just a declaration that the expert’s testimony was crucial to explain that
he had a good faith belief that he did not owe additional taxes. But we see no abuse of
discretion in the trial judge’s ruling that the proffered testimony simply would not have
had any probative value as to the subjective state of mind of Mr. Greene. Nor does
Defendant on appeal undertake to challenge the trial judge’s reasoning that errors, if any,
in the IRS’s calculation of amounts owed do not excuse the conduct charged in this
indictment.
B
Defendant called Mr. Spicer, he says, to testify concerning a seminar that he had
attended with Defendant. At this seminar Defendant received some tax protestor
literature, some of which he sent to the IRS about a year later along with a letter regarding
his dispute. The government had introduced the letter with the enclosed tax protestor
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literature as an exhibit in its case. Mr. Spicer’s testimony, Defendant’s appellate brief
says, was “intended to counter the prejudicial perception of Mr. Greene as a ‘tax
protestor.’” This is the entirety of the argument on this point. Opening Br. of Aplt. at 47.
The closest thing in the record to an offer of proof is the transcript of the bench
conference at trial discussing the government’s objection to the anticipated testimony of
Mr. Spicer. Defense counsel said that he “wanted to show where he got [the letter] to
give the jury some understanding about at least the fact that Mr. Greene didn’t create the
letter.” And the attorney said:
The Government offered this [tax protestor letter] into evidence to try to
show that Mr. Greene was using that to attempt to evade and defeat the
payment of tax. I simply wanted the jury to hear where the letter came
from, that [Mr. Spicer] got one too and that he was with Mr. Greene . . .
IV Aplt. App. 1210. The judge then interrupted counsel to ask how the proffered
testimony was relevant. The defense attorney replied, in part: “I wanted to get in just to
the general subject of the seminar. Went to a seminar, what was the general subject, did
they give you the material, have you seen similar documents, do you know whether or not
Mr. Greene got a document at that seminar.” Id.The judge said that where the materials had been received was not relevant to this
case. Defense counsel has never given a satisfactory response to that point. The judge
made it clear that he did not think that a friend who had been at the seminar when
Defendant received the protestor literature could give testimony that would be probative
on the Defendant’s state of mind when he forwarded that literature to the IRS about a year
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later. We likewise fail to see the relevance, and no cogent argument had yet been
advanced in an attempt to show relevance.
We see no abuse of discretion in the disallowance of this testimony.
C
Defendant next appears to assert that restrictions on his cross-examination of his
former accountant, Mr. Raymond Gardner, were an abuse of discretion that hampered
Defendant’s ability to present his defense. We say “appears to assert” because the brief’s
comments on this witness are so attenuated as to be cryptic. We are told only that “Mr.
Gardner testified that he disagreed with IRS auditor Harmon’s additional assessments
reflected in Government exhibit 28, but the Government objected to the question as being
irrelevant and the Court sustained the objection”; and that “The Government objected to
questions relating to a notice from the IRS dated October 9, 2000, as being irrelevant, and
the Court sustained the objection.” These two sentences are preceded by a general
assertion that the trial court “did not permit several questions, which had a direct bearing
on Mr. Greene’s state of mind.” Opening Br. of Aplt. at 48.
This again appears to be merely an argument that Mr. Greene had sincere
disagreements with the calculation of his liability, to the point that he purportedly did not
believe that he had any additional liability. But no argument is made that a sincere
disagreement with the computation of one’s tax liability is a defense at law to the charges;
the contention instead is one distinct from that – that such a disagreement is relevant to
Defendant’s willfulness. Moreover, the government correctly points out that Defendant’s
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offer of proof (to the extent there is one) does not show that any opinion Mr. Gardner may
have had about the additional assessments was communicated to Defendant, and therefore
could not have been relevant to Defendant’s state of mind. Thus, Defendant has failed to
show an abuse of discretion in the exclusion of this evidence.
D
Mr. Greene similarly complains of restrictions that the trial judge enforced in his
counsel’s direct examination of Mr. Michael Blessington, a defense witness and an
attorney who had represented Mr. Greene in tax matters during the years at issue in this
case. No argument is advanced in the two-thirds of a page in the brief which addresses
Mr. Blessington’s testimony. Instead, we are merely told what rulings the trial judge
made: first, Mr. Blessington testified that Mr. Greene had asked him to file a petition in
the tax court (presumably to contest one or more of the notices of liability) but that the
witness did not file such a petition, and the trial judge would not allow the witness to
explain the reason for the failure; second, that the witness had told Defendant about the
IRS problems resolution office in Oklahoma City, but that the court had not allowed the
defense to introduce in evidence the document that had been filed with that office in an
attempt to settle the tax issues; third, that Mr. Blessington was not allowed to testify
whether Defendant’s tax liability for the years in question would have been satisfied had
the former Mrs. Greene paid the $250,000.00 that she had, at one time, agreed to pay; and
fourth, that the witness was not permitted to answer whether he disagreed with the
assessment by the IRS. The only thing approaching an argument that is presented on
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these points is the conclusory statement that the document submitted to the problems
resolution office was “highly reflective” of Defendant’s state of mind.
As to the reason for the failure to file a tax court petition, the government asserted
at trial that Mr. Blessington could not answer that question without reference to
inadmissible hearsay. There has been no attempt to rebut that assertion as far as we are
aware. The fact that the Defendant had made some efforts to resolve his tax liability was
made clear at trial; we do not see any prejudice to the Defendant from the refusal to
introduce in evidence the document filed with the problems resolution office, nor has
Defendant clarified what additional points the proffered exhibit would have shown.
We see no abuse of discretion in the trial judge’s refusal to allow Mr. Blessington
to answer whether in his opinion Defendant’s tax liability would have been satisfied had
the former Mrs. Greene made the payment she apparently had agreed to make. She did
not make the payment. There is no offer of proof as to how the witness would have
answered the question had his response been allowed, and no showing that he could have
answered the question. See Fed. R. Evid. 103(a)(2). The same is true regarding the
question whether Mr. Blessington agreed with the additional assessment(s) the IRS had
made. We do not know if he would have claimed to have had sufficient information to
answer the question, nor how he would have answered it. And, as the trial judge
repeatedly made clear to counsel, disagreement with an assessment is not a defense to the
charges in this case.
V
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Defendant contends that limitations on his attorney’s cross-examination of
government witnesses effectively impinged on his right of confrontation. Again,
Defendant makes multiple assertions of error, with only the slightest effort to convey to
this court why he asserts that the rulings were in error and what the evidence would have
shown, if admitted. See Fed. R. Evid. 103(a)(2).
First among the Defendant’s points on cross-examination of government witnesses
is the trial judge’s refusal to admit into evidence two internal IRS documents which,
Defendant asserts, showed that he owed no additional taxes for 1990 and 1991. But that
is not what the documents represented,12 as counsel is well aware, and because these
documents were never seen by Defendant, they have no relevance on his supposed good
faith “attempt to protect his assets from unjustified seizure by the IRS,” as the brief
describes the defense theory of the case.
We will not address the merits of Defendant’s complaints regarding his re-cross-
examination of Agent Baustert because the brief does not even contain a coherent
assertion of error. We are told that the trial judge sua sponte limited the questioning, but
counsel never made an adequate offer of proof. See Fed. R. Evid. 103(a)(2). When
counsel attempted to make an offer of proof, he addressed two separate lines of inquiry he
12
As the witness explained, these documents reflected the way that the IRS
internally represented the tax status of Defendant and in particular, the fact that Defendant
and his then-wife had filed jointly for the years in question and that the ex-spouse had
later been granted “innocent spouse relief” for those years. The evidence was quite clear
that the proposed exhibits in isolation did not represent the true status of the agency’s
investigation of Defendant’s liability at any time.
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had wanted to pursue. As to the first, his offer of proof showed specifically that he
wanted to ask the witness to repeat something he had already said. There is no abuse of
discretion in disallowing testimony that is repetitious. When counsel attempted to make
his offer of proof on the second line, the judge informed counsel that his proffer was
based on a mischaracterization or misunderstanding of what the witness had earlier said.
The judge specifically told counsel that his offer of proof was therefore unacceptable in
the form of the attorney’s summary of what he expected the witness to say. The judge
explained that counsel would have to re-call the witness (outside the presence of the jury)
to show that the witness would indeed have testified consistently with counsel’s
representation. Counsel never requested that the witness be re-called. The trial judge was
more familiar with the testimony than we are, and we do not find an abuse of discretion
on this record.
Defendant also complains of restrictions on the cross-examination of IRS case
agent Scott Wells. He says that counsel was not allowed to show the witness a document
to refresh his recollection and that, at another point in the cross-examination, the judge
sua sponte cut defense counsel off. The brief follows with two paragraphs of quotes from
the caselaw on the importance of the right of cross-examination in criminal trials, but
nothing about the relevance or importance of this cross-examination in this trial.13
13
We are not even told the subject area from which counsel was restricted;
apparently we are expected – again – to determine this from the record and to formulate
the argument ourselves. This grows increasingly wearisome as we slog through the many
“issues” raised in this appeal. Counsel would do well to heed the so often repeated advice
to winnow out the weaker arguments.
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In particular, the cross-examination was limited by the trial judge when the
Defendant’s attorney tried to get Agent Wells to go into technical details about the
internal processes of the IRS. The judge said that this went beyond the scope of direct
examination. Because the brief makes no attempt to demonstrate that this was proper
cross-examination, and because the defense was clearly able to explore that topic in some
depth with several other witnesses from the IRS, we will not go further and try to search
out an abuse of discretion on this point.
At another point, the trial judge sua sponte limited the cross-examination when
Agent Wells had made it clear that he had no knowledge about the subject that defense
counsel was trying to explore, the innocent spouse relief that had been granted to
Defendant’s ex-wife. Again, the brief makes no attempt to explain why this was an abuse
of discretion, and the subject was one that was brought up by defense counsel with
several other witnesses.
In short, Defendant has failed to show any abuse of discretion and certainly has
fallen far short of showing an infringement on his constitutional right to confront the
witnesses against him.
VI
Defendant maintains that the court erred in refusing to give certain jury
instructions that, the brief says without citation of record support, were requested.
Defendant says that he requested lesser included offense instructions as to each charge
and that he requested instructions on advice of counsel and advice of accountant defenses.
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As to the lesser included offense instructions, the “argument” on this point consists of two
conclusory and redundant sentences: “Under the evidence in this case, the jury should
have been given the opportunity to consider the lesser-included offenses. Those
instructions should have been given.” This is followed by citation to a string of cases,
without any explanation of how the cases might be comparable. This is insufficient to
present the issue for review, and we decline to make this argument for the Defendant. See
American Airlines v. Christensen, 967 F.2d 410, 415 n.8 (10th Cir. 1992).
To show that he was entitled to a lesser included offense instruction, Defendant
must show four things.
First, the defendant must make a proper request; second, the lesser included
offense must contain some but not all of the elements of the charged
offense; third, the elements differentiating the two offenses must be in
dispute; and fourth, the evidence must allow the jury to rationally acquit the
defendant on the greater charge and convict on the lesser charge.
United States v. Brown, 287 F.3d 965, 974 (10th Cir. 2002).
Determination whether the trial court erred in refusing the instructions in this case
is not a simple matter with a clear resolution. Several subordinate issues rather quickly
emerge on consideration of the question. We decline to go into this analysis based on
Defendant’s cursory and inadequate presentation. “The appellant’s brief must contain . . .
(9) the argument, which must contain: (A) appellant’s contentions and the reasons for
them, with citations to the authorities and parts of the record on which the appellant
relies[.]” Fed. R. App. P. 28(a)(9)(A).
Defendant offers only slightly more in his brief to support the contention that the
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trial court should have given instructions on the reliance on advice of counsel and reliance
on advice of accountant. As to these issues, however, it is readily apparent that the trial
court did not err.
To be entitled to the instructions, Defendant would have had to show that he had
made full disclosure to the professional. See United States v. McIntosh, 124 F.3d 1330,
1337 (10th Cir. 1997) (advice of counsel in bankruptcy fraud prosecution); United States
v. Wenger, 427 F.3d 840, 853 (10th Cir. 2005) (advice of counsel in securities fraud
prosecution); United States v. Duncan, 850 F.2d 1104, 1117 (6th Cir. 1988) (advice of
accountant defense in prosecution for filing a false tax return). Defendant has not
provided citations to the record to show that he introduced evidence of full disclosure to
either professional, and we have found no such evidence. Indeed, there was testimony
from the accountant that defendant had not disclosed the existence of the bank accounts
and the note listed in Count Two as omitted from the statement accompanying Form 433-
A.
Defendant has also failed to point to evidence that either professional provided
advice on which he relied. Defendant notes that he asked his attorney and his accountant
to contest the deficiency notices in the Tax Court but they failed to do so. But the failure
to perform an act is not the same as giving advice. Here again, Defendant’s brief fails to
cite the portions of the record that would support the argument. We certainly did not find,
in our independent review of the trial transcript, any suggestion that either professional
advised Mr. Greene that he could omit assets in the financial statement he attached to his
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sworn offer in compromise; nor did we find evidence that either professional advised Mr.
Greene that he could lawfully avoid paying the taxes owed by placing assets in the hands
of nominees and otherwise concealing his assets.
Defendant may have relied on his accountant and his attorney in the colloquial
sense, but we are aware of no evidence that he relied on their professional advice in the
conduct for which he was charged and convicted. Defendant was therefore not entitled to
the instructions requested.
VII
Defendant also challenges the sentence imposed by the district court, raising
several points. While we review the sentence itself for reasonableness, see United States
v. Booker, 543 U.S. 220, 261-63 (2005), in considering underlying sentencing issues we
review a district court’s factual findings for clear error but its legal determinations de
novo, see United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).
Defendant first contends that the trial court should not have made findings of fact
at sentencing, based on his view that Apprendi v. New Jersey, 530 U.S. 466 (2000), and
its progeny require that any facts which raise the offense level calculated under the
advisory Sentencing Guidelines must be found by a jury. This argument has been
rejected many times by this court. See, e.g., United States v. Magallanez, 408 F.3d 672,
685 (10th Cir. 2005). There was no error in the trial judge’s reliance on a post-verdict
calculation of the amount of tax loss as a part of the process of calculating the advisory
guidelines range.
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Defendant asserts that interest and penalties should not have been included in the
calculation of the tax loss. He points to USSG § 2T1.1(c)(3), which provides: “If the
offense involved willful failure to pay tax, the tax loss is the amount of tax that the
taxpayer owed and did not pay.” The district court, however, relied on Application Note
1, which provides that the tax loss does not include interest and penalties “except in
willful evasion of payment cases under 26 U.S.C. § 7201 and willful failure to pay cases
under 26 U.S.C. § 7203.”14 Defendant contends that this is an “apparent discrepancy”
which should be resolved in his favor, apparently invoking the rule of lenity. But we see
no ambiguity. The first provision cited by Defendant is applicable to failure to pay cases,
not evasion cases. The application notes have the force of law unless they are
inconsistent with the guidelines themselves or other law. Stinson v. United States, 508
U.S. 36, 38 (1993). We therefore conclude that the district court did not err in applying
the plain language of Application Note 1.
Next, Defendant challenges the calculation of the tax loss. His challenge focuses
on the fact that the government’s witness at the sentencing hearings, IRS agent Bob Dean,
testified that he and the co-worker who assisted him in the task came to different
conclusions. Defendant also says that Mr. Dean gave yet another figure after hearing the
testimony of Defendant’s expert witness when the sentencing hearing was re-convened.
The Guidelines provide for an increase in the offense level for tax loss in tax crimes
14
The district court used the 2005 edition of the Guidelines Manual, apparently
without objection. Neither party challenges this decision on appeal.
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according to a scale along which each step includes a monetary range. As pertinent to
this case, the range is from $2.5 million to $7 million. USSG § 2T4.1(J). All estimates
provided by the government were above $2.5 million, with the lowest being
$2,785,490.74. On this evidence, we cannot conclude that the district court clearly erred
in finding that the tax loss exceeded $2.5 million.
Finally, Defendant alleges error in the district judge’s imposition of a fine in
excess of the guidelines range. We conclude that we must remand for the district court to
explain the reasons for its decision on the fine.
Congress has decreed that a district judge must state the reason for the imposition
of a particular sentence. 18 U.S.C. § 3553(c). The Guidelines recommended a fine of
$12,500 to $125,000. USSG § 5E1.2(c)(3). The trial court imposed a fine on each count
that was twice the upper limit of the recommendation, $250,000. The fine imposed in this
case appears to be a variance (as opposed to a departure),15 although we cannot be sure
because of the district court’s failure to explain the reasoning behind the amount of fine
imposed.
In any event, we cannot review the reasonableness of this portion of the sentence
in the absence of an explanation of the district court’s reasoning. See, e.g., United States
v. Hildreth, 485 F.3d 1120, 1127 n.2 (10th Cir. 2007). Accordingly, we must remand the
case for the district court to provide an explanation for the fines imposed.
15
The difference is explained in United States v. Atencio, 476 F.3d 1099, 1101 n.1
(10th Cir. 2007).
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Conclusion
We affirm the convictions and the sentence except for the fines imposed. We
remand to the district court for the sentencing judge to explain the reasons for the fines
imposed.
IT IS SO ORDERED.
Entered for the Court
William J. Holloway, Jr.
Circuit Judge
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