United States v. Victor Antolik

Case: 16-51338 Document: 00514126554 Page: 1 Date Filed: 08/22/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-51338 FILED
Summary Calendar August 22, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
VICTOR ANTOLIK, also known as Victor John Antolik,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:15-CR-356-1
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Victor Antolik appeals his jury trial conviction and sentence for making
and subscribing false tax returns, in violation of 26 U.S.C. § 7206(1), and for
corruptly endeavoring to obstruct the Internal Revenue Service (IRS), in
violation of 26 U.S.C. § 7212(a). He argues that the district court abused its
discretion in excluding revised tax returns for the tax years at issue that were
prepared prior to trial, and that this exclusion violated his right to present a
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-51338
complete defense. He also contends that the district court erred by refusing to
give two proposed jury instructions. Finally, he argues that the order of
restitution was improperly imposed.
This court reviews alleged violations of the Sixth Amendment right to
present a complete defense de novo, subject to review for harmless error.
United States v. Skelton, 514 F.3d 433, 438 (5th Cir. 2008). A district court’s
rulings on the admissibility of evidence, however, are reviewed for abuse of
discretion. United States v. DeLeon, 170 F.3d 494, 497 (5th Cir. 1999). Here,
the district court did not abuse its discretion in excluding the revised tax
returns. This court has held that evidence of tax liability, while holding some
logical relevance, is not legally relevant to a prosecution under § 7206(1). See
United States v. Johnson, 558 F.2d 744, 745-46 (5th Cir. 1977). Although there
is a right to present a defense, “a criminal defendant has no right to present
irrelevant testimony.” United States v. Flores-Martinez, 677 F.3d 699, 709 n.5
(5th Cir. 2012); see also Holmes v. South Carolina, 547 U.S. 319, 327 (2006).
Even assuming the marginal legal relevance of returns, “a court could
reasonably find that other factors outweighed its probative value.” See United
States v. Loe, 248 F.3d 449, 469 (5th Cir. 2001). The district court did not abuse
its discretion, and Antolik’s right to present a complete defense was not
violated.
Antolik’s arguments concerning his proposed jury instructions are
unavailing. First, we have repeatedly affirmed the use of the pattern
instruction for reasonable doubt and rejected challenges based on the notion
that juries should be instructed to equate reasonable doubt to “near certainty.”
See United States v. Lockett, 601 F. App’x 325, 329 (5th Cir. 2015) (citing
United States v. Jones, 663 F.2d 567, 571 (5th Cir. 1981)). “[A] district court
does not err by giving a charge that tracks this Circuit’s pattern jury
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instructions and that is a correct statement of the law.” United States v.
Whitfield, 590 F.3d 325, 354 (5th Cir. 2009); accord Skelton, 514 F.3d at 446.
As to Antolik’s second challenge, he fails to demonstrate that his other
proposed instruction is a correct statement of the law, and so the district court’s
refusal to include the instruction was not an abuse of discretion. United States
v. Bowen, 818 F.3d 179, 188 (5th Cir.), cert. denied, 136 S. Ct. 2477 (2016);
United States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011).
Finally, Antolik’s last point of error also fails, as any ambiguity in the
district court’s oral pronouncement at sentencing was clarified by the written
judgment. See United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir.
2003). The written judgment correctly stated that the restitution order was
only part of Antolik’s supervised release. See United States v. Westbrooks, 858
F.3d 317, 327 (5th Cir. 2017), petition for cert. filed (July 6, 2017) (17-5112).
AFFIRMED.
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