United States v. Frederick Jenkins
701 F. App'x 897
| 11th Cir. | 2017Background
- Frederick and Willie Jenkins, brothers operating a tax-preparation business, were convicted of conspiring to prepare fraudulent tax returns and willfully preparing fraudulent returns; trial proved 16 fraudulent returns.
- District court sentenced Frederick to 78 months and Willie to 75 months and ordered $3.5 million restitution.
- At sentencing the government sought to attribute hundreds more fraudulent returns to the defendants based on an IRS agent’s review of a 10% sample (283 returns), of which 228 reported business losses totaling about $5 million.
- The government extrapolated from the sample (multiplying losses to estimate total losses, applying a 28% tax-loss proxy, then halving for doubt) and urged a tax-loss finding > $3.5 million; the district court adopted a finding > $3.5 million.
- Defendants appealed, arguing, inter alia, constructive amendment of the indictment, limits on cross-examination, improper acceptance of pro se waiver at sentencing, error in tax-loss calculation, and erroneous restitution award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constructive amendment of indictment | Gov't contends indictment language about clients’ lack of consent is surplusage; no amendment occurred | Frederick/Willie argue jury instruction removed an element (clients’ lack of knowledge/consent), broadening basis for conviction | No constructive amendment; the client-knowledge language was surplusage and irrelevant to mens rea, so omission was permissible |
| Limitation on cross-examination | Gov't says limiting time was within court’s discretion and did not prejudice defendants | Defendants say 10-minute cap prevented eliciting exculpatory testimony suggesting they didn’t file certain returns | No Sixth Amendment violation; defendants had effective cross-examination and no reasonable jury would view witness materially differently |
| Waiver of right to counsel at sentencing | Gov't/ court maintained the colloquy and observations showed competency and a knowing, voluntary waiver | Defendants argued waiver was improper due to competence concerns | Waiver upheld: no bona fide doubt about competency; court warned them of dangers and they knowingly waived counsel |
| Amount of tax loss and restitution | Gov't argues sample similarities justify extrapolating hundreds of fraudulent returns and > $3.5M loss, supporting $3.5M restitution | Defendants argue sample evidence didn’t prove willfulness or fraud beyond the 16 trial-proven returns | Tax-loss finding and $3.5M restitution vacated: government failed to prove by preponderance that additional returns were willfully fraudulent; remand for resentencing |
Key Cases Cited
- United States v. Keller, 916 F.2d 628 (11th Cir. 1990) (constructive amendment principle)
- United States v. Narog, 372 F.3d 1243 (11th Cir. 2004) (definition of constructive amendment)
- United States v. Miller, 471 U.S. 130 (U.S. 1985) (surplusage in indictments may be ignored)
- United States v. Maxwell, 579 F.3d 1282 (11th Cir. 2009) (limits on cross-examination vs. Confrontation Clause)
- United States v. Garcia, 13 F.3d 1464 (11th Cir. 1994) (prejudice standard for limiting cross-examination)
- Godinez v. Moran, 509 U.S. 389 (U.S. 1993) (standard for competency to waive counsel)
- United States v. Kimball, 291 F.3d 726 (11th Cir. 2002) (knowing and voluntary waiver inquiry)
- United States v. Wingo, 789 F.3d 1226 (11th Cir. 2015) (factors creating bona fide doubt about competency)
- United States v. Cobb, 842 F.3d 1213 (11th Cir. 2016) (government’s burden to prove tax-loss amount by preponderance)
- United States v. Clarke, 562 F.3d 1158 (11th Cir. 2009) (tax-loss measure for fraudulent returns)