United States v. Cordell

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
F I L E D
FOR THE FIFTH CIRCUIT August 16, 2007
Charles R. Fulbruge III
Clerk
No. 05-20784
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MICHAEL DEAN CORDELL
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-160
Before JONES, Chief Judge and REAVLEY and SMITH, Circuit Judges.
PER CURIAM:*
Appellant, Michael Dean Cordell (“Cordell”) was convicted of eight counts
of violating 26 U.S.C. § 7202 for not paying IRS employee withholding taxes in
1998 and 1999, and he was convicted on three counts of filing false individual
income tax returns for the years 1997-99, in violation of 26 U.S.C. § 7206(1). On
appeal, Cordell challenges the sufficiency of the evidence solely on the individual
tax return verdict and aspects of the sentencing decision. We have reviewed this
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 05-20784
appeal in light of the briefs and pertinent portions of the record. Finding no
error, we AFFIRM.
To establish a violation of 26 U.S.C. § 7206(1) the Government must prove
that the accused willfully made and subscribed a tax return, the return declared
in writing that it was made under penalty of perjury, and the accused did not
believe that the return was true as to every material matter. United States v.
Loe, 262 F.3d 427, 435, n.5 (5th Cir. 2001). The Government proved that Cordell
filed tax returns claiming credit for his own withholding of employee taxes that
he did not pay to the IRS (in his capacity as employer), and he claimed tax
refunds for false tax overpayments. Cordell responds that the returns were
accurate because he “paid” the taxes by calculating the amount of net pay to be
paid to himself (as employee), regardless of whether he remitted the funds to the
IRS (as employer). He essentially argues that he cannot be punished because he
was an employee.
We reject Cordell’s assertions. United States v. Gollapudi, 130 F.3d 66 (3d
Cir. 1997). While Cordell, unlike Gollapudi, did not admit that he prepared and
signed false tax returns, the evidence was overwhelming to support the
conclusions that the taxes were never paid to the IRS and that Cordell was solely
responsible for the failure to pay. During the period in question, his various
business entities raked in hundreds of thousands of dollars, yet he, as the person
responsible for paying the taxes, not only failed to do so but also sought refunds
that were fictitious because he never made any tax payments to support a
refund.
Cordell concedes that his challenge to the PSR’s calculation of unpaid
withholding taxes fails if there is sufficient evidence to support this aspect of the
conviction. We need not consider it further.
Finally, Cordell argues that he is not subject to a sentencing enhancement
for abuse of a position of trust. The district court and the Government, however,
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No. 05-20784
explain that he was in a position of trust with respect to the employees for whose
benefit he was required to pay withholding taxes. This finding was not clearly
erroneous.
AFFIRMED.
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