United States v. John Crim

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
Nos. 08-3028, 08-3931, 08-4077, 08-4316
__________
UNITED STATES OF AMERICA
V.
JOHN MICHAEL CRIM,
a/k/a Red
John Michael Crim, Appellant at No. 08-3028
__________
UNITED STATES OF AMERICA,
V.
JOHN BROWNLEE,
a/k/a J.D. Law
John Brownlee, Appellant at No. 08-3931
__________
UNITED STATES OF AMERICA
V.
ANTHONY TRIMBLE,
a/k/a Chip
Anthony Trimble, Appellant at No. 08-4077
__________
UNITED STATES OF AMERICA
V.
CONSTANCE TAYLOR,
Appellant at No. 08-4316
__________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Criminal Nos. 2-06-cr-00658-001, 2-06-cr-00658-002,
2-06-cr-00658-005 and 2-06-cr-00658-003)
District Judge: The Honorable Anita B. Brody
Submitted Under Third Circuit L.A.R. 34.1(a)
September 15, 2011
BEFORE: SLOVITER, SMITH, and NYGAARD, Circuit Judges
(Filed November 15, 2011)
__________
OPINION OF THE COURT
__________
NYGAARD, Circuit Judge
Appellant John Michael Crim co-founded a group known as the Commonwealth
Trust Company (CTC). This firm counseled and encouraged investors to, among other
things, place income and assets into trusts so as to evade federal income taxes. A grand
jury indicted Crim, along with Appellants John Brownlee, Constance Taylor and
Anthony Trimble, with one count of conspiracy to defraud the United States in violation
of 18 U.S.C. § 371.1 Appellants Crim, Brownlee and Taylor additionally were charged
with one count of corruptly endeavoring to obstruct and impede the due administration of
1
Often referred to as a “Klein Conspiracy,” a conspiracy to violate this section gets its
name from the Second Circuit case of United States v. Klein, 247 F.2d 908 (2d Cir.
1957), and has become the generic term for a conspiracy to frustrate the government
(usually the IRS) in its lawful information gathering functions. See, e.g., United States v.
Alston, 77 F.3d 713, 719 n. 13 (3d Cir. 1996).
2
the Internal Revenue law, in violation of 26 U.S.C. § 7212(a). Appellants Taylor and
Trimble were charged with a second count of violating this section.
I. Background
Because we write primarily for the parties, who are well-acquainted with the
lengthy and complex history of this case, we will relate only those facts necessary to
address the issues on appeal. CTC marketed two domestic trusts and one offshore trust to
its clients. Based on instructions provided by CTC, many of the firm‟s clients did not file
federal tax returns. CTC advised its clients that they could escape paying federal income
taxes by diverting their income through one of CTC‟s trusts. The firm also advocated
transferring a client‟s assets into one of CTC‟s domestic trusts to protect the assets from
IRS liens and seizures.
Crim and co-defendants Brownlee, Taylor and Trimble were convicted by a jury
on all counts after a jury trial. All were sentenced to various terms of imprisonment and
ordered to pay differing amounts of restitution to the IRS. Raising various issues both
jointly and individually, Crim, Brownlee, Taylor and Trimble appeal their convictions
and sentences. By order of March 10, 2009, we consolidated their appeals.2
The bulk of the issues raised by the Appellants concern the propriety of their
convictions. We will begin with the various challenges to the sufficiency of the evidence.
II. Sufficiency of the Evidence Challenges
A. Sufficiency of the Evidence of Appellant Crim‟s conviction
2
We have jurisdiction over these matters pursuant to 28 U.S.C. § 1291. Additionally, we
have jurisdiction to review the District Court‟s sentences pursuant to 18 U.S.C. § 3742.
3
Our inquiry is limited to determining whether the jury‟s verdict is permissible.
See United States v. McGill, 964 F.2d 222, 229 (3d Cir. 1992). Appellant Crim argues
that the evidence was insufficient to support his conviction at Count II for corruptly
endeavoring to impede the due administration of IRS laws at a training seminar hosted by
CTC in May of 2002 in Lancaster, Pennsylvania. We disagree.
Section 7212(a) provides, in part, that “[w]hoever corruptly or by force or threats
of force . . . obstructs or impedes, or endeavors to obstruct or impede, the due
administration of this title, shall, upon conviction thereof, be fined not more than $5,000,
or imprisoned not more than 3 years, or both. . . .” To prove a violation of § 7212(a), the
Government must establish (1) corruption, force, or threat of force, and (2) an attempt to
obstruct the administration of the IRS. Here, the Government‟s evidence is more than
sufficient to permit the jury to conclude beyond a reasonable doubt that Crim violated 26
U.S.C. § 7212(a).
With respect to the first element of the offense, the Government charged Crim
with corruptly attempting to interfere with the administration of the IRS. An act is
“corrupt” within the meaning of Section 7212 if it is performed with the intention to
secure an unlawful benefit for oneself or for another. See, e.g., United States v. Reeves,
752 F.2d 995, 998-99 (5th Cir.), cert denied, 474 U.S. 834 (1985). We note that Crim
does not contest the sufficiency of the evidence against him at Count One. Therefore,
Crim‟s recognition that the evidence was sufficient to prove that CTC was an illegal
conspiracy to promote tax evasion more than establishes Crim‟s state of mind for the first
element of a Section 7212(a) violation, which rests on the promotion of CTC to others.
4
The evidence presented at trial clearly supports the second element of the offense.
The Government‟s evidence demonstrated, among other things, that Crim spoke and
made welcoming remarks at the CTC tax evasion seminar and was present at the
Lancaster session to promote and encourage CTC and its sales force. Given this
evidence, the jury‟s verdict was permissible and we will affirm Crim‟s conviction at
Count Two of the indictment.
B. Sufficiency of the Evidence of Appellant Brownlee‟s Conviction
Appellant Brownlee argues that the evidence was insufficient to support his
conviction at Count One of the indictment. He argues that there was no evidence of a
shared unity of purpose or common goal between him and the other conspirators. He also
argues that the jury‟s verdict was against the weight of the evidence. We disagree.
The Government presented sufficient evidence to support Brownlee‟s conviction
at Count One. To prove a conspiracy to defraud the United States in violation of 18
U.S.C. 371 (Count 1), the evidence must establish the following elements beyond a
reasonable doubt: (1) an agreement to defraud the United States, (2) an overt act by one
of the conspirators in furtherance of that objective, and (3) any conspirator's commission
of at least one overt act in furtherance of the conspiracy. See United States v. Rankin,
870 F.2d 109, 113 (3d Cir. 1989). “To conspire to defraud the United States means
primarily to cheat the government out of property or money, but also means to interfere
with or obstruct the government by deceit, craft, trickery, or at least by means that are
dishonest.” Hammerschmidt v. United States, 265 U.S. 182, 188 (1924).
5
The Government established that Brownlee warned clients about all-expenses paid
vacations to “Club Fed” if they did not shred, burn, and separate their garbage. The
evidence showed that Brownlee sent emails to Crim, Taylor and another co-defendant,
Wayne Roebuck, expressing his concern about “drawing the attention of the IRS and
leaving a trail.” In an email to Crim, for example, Brownlee warned about having a
client “who gets pinched hard by the IRS and turns into a singing canary.” The evidence
also revealed that Brownlee sold trusts and opinion letters to clients on behalf of CTC
and received commissions for those sales. Brownlee was a frequent speaker at CTC
conferences and training seminars. In sum, there was sufficient evidence to support
Brownlee‟s conviction at Count One.
There was also sufficient evidence to support Brownlee‟s conviction at Count
Two. Testimony revealed that Brownlee spoke about liens at CTC‟s training session in
Lancaster. Brownlee, an attorney, specifically spoke on the topic of the “Legal
Substance of Liens,” which outlined a method advocated by the conspirators to make a
client‟s assets appear valueless and not subject to taxation by the IRS. An IRS
investigator also testified to a handwritten document he discovered at the Lancaster Host
Hotel, the location of a CTC conference. The one-page document had the initials “J.B.”
and a date on it. No conference speaker besides Appellant Brownlee had the initials
“J.B.” These notes, the record reveals, were similar to several slides of a Power-Point
presentation on liens. The investigator also testified that Brownlee often used Power-
Point in his presentations. From this evidence, the jury could certainly infer that
6
Brownlee spoke at CTC‟s Lancaster conference about the firm‟s techniques of
fraudulently using liens to hide assets from the IRS.3
Brownlee‟s conviction at Count Two will be affirmed.
C. Sufficiency of the Evidence of Appellant Taylor‟s Convictions
Appellant Taylor argues that the evidence was insufficient to support her
convictions at Counts Two and Three of the indictment. Like Crim, she does not
challenge her conviction at Count One. Her argument is meritless.
The evidence established that Taylor spoke at CTC training sessions in Lancaster,
Pennsylvania on several occasions. The conference agenda, for example, lists her as
presenter on the subject of “The Documents.” An IRS agent‟s testimony confirms
Taylor‟s participation in the conference and her discussion of CTC trusts. The agenda for
the Lancaster conference also listed Taylor as speaking on the topic of “Doing Business a
la GDS.”4 Testimony established that during this session, Taylor instructed the CTC
sales department on how to use her document service to evade the IRS. Finally, evidence
3
Brownlee also claims the verdict was against the weight of the evidence. He made this
argument before the District Court in a Rule 33 motion. United States v. Johnson, 302
F.3d 139, 150 (3d Cir. 2002). The District Court did not abuse its discretion. Rule 33
requests for a new trial “are not favored and should be granted sparingly and only in
exceptional cases.‟” United States v. Silveus, 542 F.3d 993, 1005 (3d Cir. 2008) (citation
omitted). Although a district court can grant a Rule 33 motion if it finds the jury‟s
verdict “contrary to the weight of evidence,” it should do so “only if it believes that there
is a serious danger that a miscarriage of justice has occurred—that is, that an innocent
person has been convicted.‟” Johnson, 302 F.3d at 150 (citation omitted). Brownlee has
failed to highlight any “serious danger that a miscarriage of justice ha[d] occurred.” The
District Court did not abuse its discretion.
4
Taylor was involved in an aspect of this conspiracy known as “Guardian Document
Services.” Through GDS, Taylor provided fraudulent trust documents to CTC clients and
advised those clients on how to maintain and manage CTC trusts.
7
established that Taylor spoke at another CTC conference in Exton, Pennsylvania about
the services provided by her company.
Taylor‟s principal argument is that no evidence was presented about what she
actually said at these conferences. Along these lines, she also argues that the
Government was required to prove that someone actually filed a false tax return as a
result of her speech. We are not persuaded. First, the jury heard several recordings of
Taylor‟s speeches from other CTC conferences wherein she lectured clients on how to
prevent the IRS from assessing and collecting taxes. We agree with the Government here
that it was reasonable for the jury to conclude that Taylor spoke with similar purpose at
the Lancaster and Exton meetings. Further, the Government does not have to prove
Taylor was successful in her attempts to impede the administration of tax laws, only that
she had the intent to do so, which the jury could reasonably infer from the Government‟s
evidence in this case. See, e.g., United States v. Bostian, 59 F.3d 474, 479 (4th Cir.
1995).
Taylor‟s arguments lack merit and we will affirm her conviction at Counts Two
and Three of the indictment.
III. Evidentiary Challenges
Appellants Crim, Brownlee and Taylor challenge the District Court‟s admission of
various pieces of evidence. We find all of the evidentiary challenges to be meritless and
conclude that the District Court did not abuse its discretion.
A. Appellant Crim‟s challenge to the admission of excerpts of his autobiography
8
Appellant Crim argues that the District Court abused its discretion when it
admitted certain excerpts from an autobiographical document entitled “Meet Me Half
Way.” At issue are eleven excerpted statements from the work, that include, for example,
Crim‟s revocation of “any alleged authority that any Government agency might have over
me,” and Crim‟s “rescission of his signature on all United States Government documents,
including his Social Security number,” which he refers to as “the mark of the beast.”
Also admitted into evidence was his admission in the autobiography to “the use of
corporations to do off-shore investments.” Crim filed a motion in limine to exclude these
and other statements, which the District Court denied.
The Government initially argues that this evidence was intrinsic evidence and was
properly admitted as such. In United States v. Green, 617 F.3d 233, (3d Cir. 2010), we
acknowledged that evidence is either intrinsic, and not subject to Rule 404(b), or
extrinsic. Evidence is intrinsic if it directly proves the charged offense. Id. at 248-49.
Intrinsic evidence also can consist of “uncharged acts performed contemporaneously
with the charged crime . . . if they facilitate the commission of the charged crime.” Id.The excerpts from Crim‟s autobiography are not intrinsic evidence under Green. First,
these statements do not directly prove violations of either 18 U.S.C. § 371 or I.R.C. §
7212(a). Crim‟s opinions on whether he, for example, had to possess a Social Security
number do not directly prove elements of Count One or Count Two of the indictment.
Further, the actions described in the excerpts are not uncharged acts performed
contemporaneously with the actions charged in either count of the indictment. This
9
evidence was, instead, extrinsic evidence admitted, we presume, under FED.R.EVID.
404(b).5
We will reverse the District Court‟s evidentiary rulings only if its decision was
“arbitrary, fanciful, or clearly unreasonable . . . where no reasonable person would adopt
[its] view.” Green, 617 F.3d at 239. To satisfy the requirements of Rule 404(b),
evidence of other acts must (1) have a proper evidentiary purpose, (2) be relevant under
FED.R.EVID. 402, (3) satisfy Rule 403, that is to say, not be substantially more prejudicial
than probative, and (4) be accompanied by a limiting instruction when requested,
instructing the jury not to use the evidence for an improper purpose. United States v.
Cross, 308 F.3d 308. 320-21 (3d Cir. 2002) (footnote omitted). We have noted that the
threshold established by Rule 404(b) is not overly high, and that almost all evidence can
be admitted under it so long as it is for a purpose other than to demonstrate a defendant‟s
bad character in order to encourage the jury to convict on the basis of a propensity to
commit crime. Green, 617 F.3d at 248-49.
The District Court did not abuse its discretion in determining that these
requirements were met. The excerpts from the autobiography were probative of Crim‟s
intent, lack of good faith and consciousness of guilt. Indeed, in ruling on a motion filed
under FED.R.CRIM.P. 33, the District Court found this same evidence “highly probative”
because it “tended to negate a good faith defense” and because it indicated that Crim was
on notice that the IRS Code applied to him.
5
We presume as much because the District Court did not explicitly state its reasons for
admitting this evidence.
10
Nor was the admission of this evidence unfairly prejudicial under Rule 403.
Crim‟s argument on this point is disingenuous. He argues that the autobiographical
excerpts portray him as an “anti-tax fanatic” and a “tax protestor,” but later acknowledges
that he is the “alleged leader of a quasi-tax protestor organization.” The probative value
of Crim‟s anti-government beliefs was not substantially outweighed by the danger of
prejudice to him. Of course, any risk of prejudice could have been minimized by a
limiting instruction. Crim, however, failed to request one.
We see no abuse of discretion in the admission of this evidence.
B. Admission of Appellants‟ failure to file tax returns
Three of the Appellants, Crim, Brownlee and Taylor, argue that the District Court
abused its discretion in admitting their failures to file tax returns from the years 2000
through 2003. The District Court admitted this evidence not under Rule 404(b) but as
intrinsic evidence of the Government‟s case-in-chief.
After our decision in Green, we question whether this evidence was intrinsic by
nature. The failure to file an income tax return does not directly prove either a violation
of 18 U.S.C. § 371 or of I.R.C. § 7212(a). Furthermore, it is a bit of a stretch to find the
failure to file an individual income tax return as facilitating the crimes charged. The
Appellants were charged with assisting clients in obstructing the administration of tax
laws and of defrauding the Government through that instruction. A failure to file a
personal income tax return does not facilitate those crimes.
Although the District Court‟s admission of this evidence as intrinsic may have
missed the mark, such error was harmless in any event because the evidence would easily
11
be admitted under Rule 404(b). The failure to file a tax return was certainly probative of
their intent to defraud the Government and prevent the IRS from assessing and collecting
taxes on CTC clients. This evidence was also admissible as proof of motive, intent, plan
or knowledge. See FED.R.EVID. 404(b). Further, evidence that they failed to file a tax
return was not unduly prejudicial to the Appellants, no more so than the emails,
documents and audio recordings introduced at trial, all admitted with no objection from
the Appellants.
The District Court‟s failure to give a limiting instruction does not amount to an
abuse of discretion. The Government warned the jury that the Appellants were not on
trial for their failure to file tax returns and that this evidence was to be considered only
for the limited purpose of evaluating the Appellants‟ intent, plan and public statements.
See, e.g., United States v. Giraldi, 86 F.3d 1468, 1378 (5th Cir. 1996).
C. Admission of Evidence Concerning a Celebrity Client
Appellant Crim argues that the District Court abused its discretion in permitting
the Government to elicit testimony from witnesses concerning CTC celebrity client, actor
Wesley Snipes. Crim‟s argument on this point is meritless. The District Court did not
abuse its discretion in admitting what was limited testimony regarding the tax-evading
actor.6
D. Admission of the Brownlee Notes
6
Snipes, a film actor of some note, was convicted of the willful failure to file individual
federal income tax returns for calendar years 1999, 2000, and 2001. See United States v.
Snipes, 611 F.3d 855 (11th Cir. 2010).
12
Appellant Brownlee argues that the District Court abused its discretion in
admitting a page of handwritten notes on hotel stationary that IRS investigators
discovered at the site of one of CTC‟s conferences as well as a Power Point presentation.
Brownlee submits that the page of handwritten notes is inadmissible hearsay. It is not.
“„Hearsay‟ is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.”
FED.R.EVID. 801(c). These notes simply relate the advice Brownlee gave CTC clients
on how to create sham liens against their assets. As such, they are not declarations of an
act, but instead, more akin to instructions to do something, which we have held not to be
hearsay. See, e.g., United States v. Reilly, 33 F.3d 1396, 1410 (3d Cir. 1994). Put
another way, these notes were not offered to prove the truth of the statements contained
within them, but instead to prove the fact that certain instructions had been given to CTC
clients. See Anderson v. United States, 417 U.S. 211, 220 n. 8 (1974). We dismiss
outright Brownlee‟s challenge to the admissibility of the Power Point presentation, which
was, after all, his own exhibit.
The District Court did not abuse its discretion by admitting this evidence.
IV. Prosecutorial Misconduct
Appellant Brownlee points to three different remarks made by the prosecutor
during closing argument as evidence of prosecutorial misconduct, all of which he
objected to. We review for abuse of discretion a district court‟s ruling on a
contemporaneous objection. United States v. Brennan, 326 F.3d 176, 182 (3d Cir. 2003).
13
These statements were not improper and the District Court did not abuse its discretion.
As we have recently explained,
A prosecutor‟s comments can create reversible error if they
“so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974). “[A] criminal
conviction is not to be lightly overturned on the basis of a
prosecutor‟s comments standing alone, for the statements or
conduct must be viewed in context; only by so doing can it be
determined whether the prosecutor‟s conduct affected the
fairness of the trial.” United States v. Young, 470 U.S. 1, 11,
(1985). Moreover, we “must examine the prosecutor's
offensive actions in context and in light of the entire trial,
assessing the severity of the conduct, the effect of the curative
instructions, and the quantum of evidence against the
defendant.” Moore v. Morton, 255 F.3d 95, 107 (3d Cir.
2001). “A finding of prosecutorial misconduct requires
reversal unless the error is harmless.” Brennan, 326 F.3d at
182. “If the error is constitutional, we will affirm [only] if we
determine that the error is harmless beyond a reasonable
doubt.” United States v. Helbling, 209 F.3d 226, 241 (3d Cir.
2000). “If the error is non-constitutional, we will affirm when
it is highly probable that the error did not contribute to the
judgment.” Id. (quotation omitted).
United States v. Lee, 612 F.3d 170, 194 (3d Cir. 2010).
We have reviewed the prosecutor‟s closing argument and find it to contain nothing
improper. Moreover, the specific comments in question certainly do not “so infect the
trial with unfairness as to make the resulting conviction a denial of due process.” Darden
v. Wainwright, 477 U.S. 168, 181 (1986). The District Court did not abuse its discretion
by overruling Brownlee‟s objections to the Government‟s closing argument.
V. Request for a limiting instruction
14
Appellants Crim and Taylor maintain that the District Court erred by omitting an
agreed-to instruction on the cooperating defendant‟s guilty pleas from its final jury
charge. Neither Crim nor Taylor noticed this omission at trial. They likewise failed to
object to the omission from the jury charge. We, therefore, review their argument for
plain error. United States v. Ozcelik, 527 F.3d 88, 96 (3d Cir. 2008).
Following this Court‟s model instruction 4.19, the District Court instructed the
jury to consider testimony of a witness who had reached a plea agreement with the
Government “with care and caution.” The District Court further advised that “whether or
not the testimony may have been influenced by the plea agreement, grant of immunity,
Government promise or any other benefit, is for you to determine.” Through a clerical
error, however, the second portion of the model jury instruction was omitted. That
portion stated:
You must not consider [the witness‟s] guilty plea as any
evidence of [name of defendant]‟s guilt. (His)(Her) decision
to plead guilty was a personal decision about (his)(her) own
guilt. Such evidence is offered only to allow you to assess the
credibility of the witness; to eliminate any concern that (the
defendant) (any of the defendants) has been singled out for
prosecution; and to explain how the witness came to possess
detailed first-hand knowledge of the events about which
(he)(she) testified. You may consider (name of witness)‟s
guilty plea only for those purposes.
The omission of this section of the model instruction was not error, much less
plain error. First, the District Court repeatedly instructed the jury to “separately consider
the evidence against each defendant in each offense charged.” Second, in closing
argument, the Government stressed to the jurors that they “need to consider each
15
defendant separately” when determining guilt. Third, Brownlee‟s counsel repeatedly
cautioned the jury to “give each one of [the defendants] separate consideration.”
We recognize that admitting a co-conspirator‟s guilty plea can jeopardize the
fundamental fairness of a criminal trial because of the likelihood that the jury may impute
a co-conspirator‟s guilt to a defendant. See Government of the Virgin Islands v.
Mujahid, 990 F.2d 111, 116 (3d Cir. 1993). This is why a judge must instruct the jury as
to the limited purpose of such evidence. Id. at 116. Such an instruction should highlight
for the jury “how the guilty plea evidence can and cannot be used.” Id.While not complete, the charge given in this case was sufficient to inform the jury
of the limited purpose for which the guilty pleas could be considered. The guilty plea of
concern here was not used as evidence against Appellants Crim and Taylor. There was
no error, much less a plain one, by omitting this part of the model jury instructions.
VI. The Willful Blindness Jury Instruction
Appellant Brownlee next argues that the District Court erred by instructing the
jury on “willful blindness” because there was no evidence that he deliberately ignored
learning about CTC tax evasion schemes. Under the willful blindness doctrine, a
defendant has knowledge of a fact if he is “aware of a high probability” of the fact and
“consciously and deliberately tried to avoid learning about this fact.” United States v.
Stadtmauer, 620 F.3d 238, 257 (3d Cir. 2010). The District Court instructed the jury that
When, as in this case, knowledge of a particular fact is
essential to the offense charged, the Government may prove
that the defendants knew of that fact if the evidence proves
beyond a reasonable doubt that those defendants deliberately
closed his or her eyes or that a defendant deliberately closed
16
his or her eyes to what would otherwise have been obvious to
him or her.
No one can avoid responsibility for a crime by deliberately
ignoring the obvious. Thus, you may find that a defendant
knew the purpose of the conspiracy was to deceive or cheat
the United States by impeding or impairing, obstructing or
defeating the lawful functions of the IRS based on evidence
which proves that defendant was aware of a high probability
of this fact and the defendant consciously and deliberately
tried to avoid learning about this fact.
Brownlee failed to object to this instruction, so we review for plain error. United
States v. Flores, 454 F.3d 149, 156 (3d Cir. 2006) (reviewing for plain error where the
defendant failed “to raise his objection to the willful blindness instruction at trial”). Here
again, we see no error, much less a plain one.
Sufficient evidence supported this instruction. For example, throughout the trial
Brownlee‟s counsel maintained that Brownlee was unaware of CTC‟s “off-shore
program,” while other testimony indicated Brownlee expressed concern that certain
clients failed to use an off-shore mailing address. Based on this and other evidence in the
record, the jury could have found that Brownlee deliberately closed his eyes to what CTC
was instructing its clients to do. Therefore, the willful blindness instruction was properly
given. See, e.g., United States v. Leahy, 455 F.3d 634, 652 (3d Cir. 2006).
Having determined that there are no errors that merit a reversal of the convictions,
we turn to those issues that concern the Appellants‟ sentences.
VII. Challenges to the Appellants‟ Sentences
We review the Appellants‟ challenges to their sentences individually, beginning
with Appellant Crim.
17
A. Calculation of the Tax Loss.
Appellant Crim raises several challenges to the District Court‟s calculation of the
tax loss charged against him. He argues that the loss calculated in the pre-sentence report
differs from the Government‟s loss calculation figures, and that the District Court cannot
adopt the pre-sentence report where it fails to resolve certain factual disputes. He further
argues that that the audit documentation submitted by the Government relating to the tax
loss does not “establish with any degree of reasonable certainty” what audit adjustments
made by the IRS were not attributable to CTC. Crim concedes that he failed to object to
the tax loss calculations at sentencing. We therefore review the District Court‟s
calculations for plain error. United States v. Williams, 464 F.3d 443, 445 (3d Cir. 2006).
We find no error here, much less a plain one.
The Government maintained that the amount of tax loss was $17,242,806.57
whereas the pre-sentence report placed the amount at $15,415,279.00. The District Court
adopted the lesser figure set out in the pre-sentence report. For sentencing purposes,
however, this is a distinction without a difference. Both amounts lead to the same base
offense level of 26 under the advisory sentencing guidelines. See U.S.S.G. § 2T1.4 (tax
loss table). Furthermore, the District Court adopted the pre-sentence report range of 151-
188 months, reducing it to 96 months, which was the appropriate statutory maximum.
Having considered all of Crim‟s further arguments on this point, we find no error.
B. Substantive Reasonableness of Brownlee‟s Sentence
18
Appellant Brownlee maintains that the District Court abused its discretion when
imposing his sentence because it unreasonably failed to consider all of the § 3553(a)
factors. Our review of the record, however, reveals a sentence imposed within reason.
The District Court sentenced Brownlee to a term of imprisonment of 78 months, a
term that was substantially below the Guidelines range. Brownlee does not challenge the
court‟s calculation of his Guidelines range, nor does he allege any procedural error during
the sentencing hearing. Instead, he limits his challenge to the substantive reasonableness
of the sentence imposed. We review for abuse of discretion. See Gall v. United States,
552 U.S. 38, 51 (2007); United States v. King, 454 F.3d 187, 194 (3d Cir. 2006).
We are satisfied that Brownlee‟s sentence was reasonable. The District Court
followed the three-step process outlined in United States v. Gunter, 462 F.3d 237, 247
(3d Cir. 2006). It further gave “rational and meaningful consideration [to] the factors
enumerated in 18 U.S.C. § 3553(a)” as required by United States v. Grier, 475 F.3d 556,
571 (3d Cir. 2007) (en banc). The District Court also took into account Brownlee‟s
background, including the difficulties he had in his personal life as well as his extensive
involvement in the conspiracy. The District Court imposed a sentence that was below the
suggested advisory Guidelines range, which we find an eminently reasonable choice.
C. Challenge to Appellant Trimble‟s Sentence
Appellant Trimble also challenges the reasonableness of his sentence. He first
argues that the Government‟s tax loss calculation was mere speculation and hearsay,
rendering his sentence procedurally unreasonable. We reject this argument out-of-hand.
19
The Government‟s calculation met the requirements of a reasonable estimate and Trimble
has pointed to no particular calculation as erroneous. See U.S.S.G. § 2T1.1, app. note 1.
He argues further procedural unreasonableness, maintaining that the District Court
prohibited him from challenging the Government‟s $5.7 million loss figure attributed to
him. The record reflects, however, that Trimble brought no specific challenge to this
calculation and did not specifically object to the District Court‟s adoption of it.
Here again, we are satisfied that the District Court‟s sentence was procedurally and
substantively reasonable. As it did with the other Appellants, the District Court followed
the three-step process outlined in United States v. Gunter, 462 F.3d 237, 247 (3d Cir.
2006). The District Court gave “rational and meaningful consideration [to] the factors
enumerated in 18 U.S.C. § 3553(a)” as required by Grier, supra., including Trimble‟s
lack of criminal history, familial situation, civic and charity involvement, contrition and
character evidence. The District Court imposed a sentence that was within the suggested
advisory guidelines range, which was not an abuse of its discretion.
VIII. Errors Requiring a Remand
The Government correctly acknowledges that problems exist with the manner in
which the District Court ordered restitution against Appellants Crim and Taylor and in
which it sentenced Appellant Crim. After careful review, these errors require us to vacate
Appellant Crim‟s sentence and remand his case for resentencing. We further remand
Crim and Taylor‟s cases for clarification of the District Court‟s restitution order.
A. Appellant Crim‟s Sentence
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Appellant Crim was sentenced to 96 months on both Counts One and Two of the
indictment, to run concurrently. This was error.
In United States v. Ward, 626 F.3d 179 (3d Cir. 2010), we held that a District
Court commits procedural error when it sentences a defendant to an individual sentence
on all counts, rather than sentencing him separately on each count of an indictment. We
explained that such a sentence is inconsistent with U.S.S.G. § 5G1.2 and prevents us
from determining whether the sentence is legal as to a particular count. Id. at 184.
In light of our decision in Ward, we will vacate Crim‟s sentence and remand this
matter to the District Court with instructions for it to impose sentence on each count.
B. Restitution Orders
Under the Mandatory Victims Restitution Act, (MVRA), “[a] person sentenced to
pay a fine or other monetary penalty, including restitution, shall make such payment
immediately unless . . . the court provides for payment on a date certain or in
installments.” 18 U.S.C. § 3572(d)(1). This statute also mandates that the sentencing
order include a payment schedule in consideration of the defendant‟s economic
circumstances. See 18 U.S.C. § 3664(f)(2), see also, United States v. Coates, 178 F.3d
681, 684 (1999). Failure to do so constitutes plain error. United States v. Corley, 500
F.3d 210, 227 (3d Cir. 2007).
Here, as the Government concedes and Appellants Crim and Taylor point out, the
District Court ordered restitution in the amount of $17,242,306.57 from Appellant Crim
and $3, 300,000.00 from Appellant Taylor, but the record reveals the District Court‟s
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failure to take into account their financial resources and a failure to state on the record the
manner and schedule of payments. The District Court‟s sentencing orders are also silent
on these matters, but for the amount of restitution ordered and that restitution is to be
made immediately.
It was plain error, therefore, for the District Court to order restitution without
taking into account Crim and Taylor‟s financial resources and without stating, on the
record, the manner, method and schedule of payments. We will, therefore, vacate the
District Court‟s orders of restitution in those appeals and remand those matters to the
District Court so that it may specify the amount of restitution and the method, manner
and schedule of payments, after taking into account the financial resources of each
Appellant.
IX. Conclusion
We will affirm the convictions of Appellants Crim, Brownlee and Taylor. We
affirm the sentences given Appellants Brownlee, Taylor and Trimble. We will vacate
Appellant Crim‟s sentence and remand for resentencing. We will also vacate the award
of restitution entered against Appellants Crim and Taylor and will remand to the District
Court for clarification.
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