United States v. Sookyeong Kim Sebold

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4205
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SOOKYEONG KIM SEBOLD, a/k/a Sophia Kim,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:12-cr-00434-LMB-1)
Submitted: November 25, 2013 Decided: December 3, 2013
Before MOTZ, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Kevin R. Brehm,
Assistant Federal Public Defender, Alexandria, Virginia, for
Appellant. Kathryn Keneally, Assistant Attorney General, Frank
P. Cihlar, Chief, Criminal Appeals & Tax Enforcement Policy
Section, Gregory Victor Davis, Joseph B. Syverson, Tax Division,
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sookyeong Kim Sebold was convicted by a jury of filing
a false individual income tax return and criminal tax evasion,
26 U.S.C. §§ 7201, 7206 (2012), both with respect to Sebold’s
2005 federal individual income tax liability. The district
court sentenced Sebold to 24 months’ imprisonment. She appeals,
arguing that the Government failed to prove that her conduct was
willful within the meaning of the statutes of conviction. The
evidence presented at Sebold’s trial, viewed in the light most
favorable to the Government, see United States v. Burgos, 94
F.3d 849, 854 (4th Cir. 1996) (en banc), was as follows.
Between 2002 and 2005, Sebold stole approximately
$810,000 from her employer, the Korean Cultural and Freedom
Foundation (KCFF), a nonprofit organization devoted to
supporting the Universal Ballet Company, a Korean ballet
company. Sebold was KCFF’s treasurer and had signatory
authority over its bank accounts. She used her authority to
divert funds sent to KCFF into her own bank accounts, which she
then used to support her gambling and day-trading habits, among
other things. In 2005 alone, Sebold spent over $58,000 at
casinos using her debit card, and withdrew another $86,000 in
cash from ATM’s located near casinos. William Pangoras, the
operations controller for Bally’s Atlantic City, testified that
Sebold made 34 gambling trips to Atlantic City in 2005,
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totalling 180 hours of playing time, and involving $167,845 in
cash transactions. Sebold also engaged in extensive day-
trading, sometimes trading the same stock ten times in one day.
In one month alone in 2005, Sebold placed over 800 buy and sell
orders.
On her 2005 federal income tax return, Sebold reported
zero wage income and zero total income. She claimed a short-term
capital loss of $277,962, attributable to losses sustained in
her day-trading activities with money stolen from KCFF. Sebold
testified that she completed the return personally. She does
not deny that she stole the funds from KCFF; rather, Sebold
argues that the Government failed to prove that she knew that
those funds were reportable as taxable income. *
We will uphold a jury’s verdict if there is
substantial evidence in the record to support it. Glasser v.
United States, 315 U.S. 60, 80 (1942). In determining whether
the evidence in the record is substantial, we view the evidence
in the light most favorable to the Government, and inquire
whether there is evidence that a reasonable finder of fact could
*
I.R.C. § 61 defines gross income as “all income from
whatever source derived” and includes gains from illegal
activities. See James v. United States, 366 U.S. 213 (1960)
(overruling Commissioner v. Wilcox, 327 U.S. 404 (1946)).
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accept as adequate and sufficient to establish a defendant’s
guilt beyond a reasonable doubt. Burgos, 94 F.3d at 862. In
evaluating the sufficiency of the evidence, this court does not
review the credibility of the witnesses and assumes that the
jury resolved all contradictions in the testimony in favor of
the Government. United States v. Kelly, 510 F.3d 433, 440 (4th
Cir. 2007).
A conviction “under section 7206(1) requires proof
that: (1) a person made or subscribed to a federal tax return
which he verified as true; (2) the return was false as to a
material matter; (3) the defendant signed the return willfully
and knowing it was false; and (4) the return contained a written
declaration that it was made under the penalty of perjury.”
United States v. Presbitero, 569 F.3d 691, 700 (7th Cir. 2009).
In order to sustain a conviction under § 7201, the Government
must prove that: (1) Sebold owed a substantial income tax
liability; (2) that she attempted in any manner to evade or
defeat the payment of that tax; and (3) that she did so
willfully. United States v. Wilkins, 385 F.2d 465, 472 (4th
Cir. 1967). A formal assessment is not required to prove tax
evasion. See United States v. Silkman, 156 F.3d 833, 835 (8th
Cir. 1998).
Convictions under both §§ 7206 and 7201 require the
Government to prove that Sebold’s actions were willful. See
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United States v. Aramony, 88 F.3d 1369, 1382 (4th Cir. 1996)
(filing false tax returns). Failure to supply an accountant with
accurate information is evidence of willfulness. United States
v. Useni, 516 F.3d 634, 650 (7th Cir. 2008). And, although
willfulness cannot be inferred solely from an understatement of
income, willfulness can be inferred from making false entries or
alterations, or false invoices or documents, destruction of
books or records, concealment of assets or covering up sources
of income, handling of one’s affairs to avoid making the records
usual in transactions of the kind, and any conduct, the likely
effect of which would be to mislead or to conceal. Spies v.
United States, 317 U.S. 492, 499 (1943).
We have reviewed the record, including the trial
testimony, and find that the jury heard sufficient evidence of
willfulness to support its finding of guilt. Accordingly, we
affirm Sebold’s conviction. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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