United States v. Brody
705 F.3d 1277
10th Cir.2013Background
- Brody was convicted by a jury of willful failure to file a tax return for 2001 and sentenced to 10 months’ imprisonment.
- The record on appeal is incomplete; Brody faced multiple charges in an initial indictment, but only the failure-to-file count survived.
- Brody is founder of Merrill Scott & Associates (MSA), a financial/tax firm under various investigations; related proceedings are referenced but not fully in the record.
- Brody sought to expand the appeal after transcripts were ordered and the government paid for them, leading to a multi-claim brief rather than a focused sentencing challenge.
- The court denied deferment of the appendix and later received a limited record, lacking essential trial testimony and the full sentencing transcript, hindering review of several claims.
- The panel ultimately affirmed the district court’s judgment and sentencing, noting that the record deficiencies prevent proper consideration of several asserted errors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the evidence was sufficient to support the conviction. | Brody argues insufficiency of evidence to sustain conviction. | Brody’s insufficiency challenge hinges on missing trial transcript; record incomplete. | Record inadequate; sufficiency review cannot be conducted. |
| Whether the 10-month sentence was error due to a tax-loss enhancement. | Brody contends enhancement based on tax loss was improper. | Record insufficient; moot because sentence already served. | Claim moot; no redress available; record deficient for merits. |
| Whether prosecutorial misconduct occurred from references to religion/personal life. | Brody claims prosecutorial misconduct at trial/closing. | Record limited to closing argument; insufficient to judge misconduct. | Insufficient record to determine misconduct; district court’s denial affirmed. |
| Whether the indictment/time-bar defense of statute of limitations barred the case. | Brody argues the 2002 asset-freeze order barred prosecution for 2001 income. | Claim is waived; affirmative defense with record lacking; not jurisdictional. | Waived due to failure to preserve/record; no jurisdictional defect shown. |
Key Cases Cited
- United States v. Vasquez, 985 F.2d 491 (10th Cir. 1993) (failure to provide transcript bars sufficiency review; waives claims)
- United States v. Dago, 441 F.3d 1238 (10th Cir. 2006) (inadequate record requires affirmance)
- Scott v. Hern, 216 F.3d 897 (10th Cir. 2000) (review where record is insufficient to permit review)
- McGinnis v. Gustafson, 978 F.2d 1199 (10th Cir. 1992) (failure to file required transcript raises barrier to review)
- United States v. Cooper, 956 F.2d 960 (10th Cir. 1992) (statute-of-limitations defense can be waived)
- United States v. Gallup, 812 F.2d 1271 (10th Cir. 1987) (waiver principle for time-bar issues)
- United States v. Johnson, 529 U.S. 53 (2000) (supervised release begins on release from imprisonment; no credit for overlong sentence)
- Rhodes v. Judiscak, 676 F.3d 931 (10th Cir. 2012) (cannot modify supervised release by declaring sentence too long)