United States v. Harvey Zitron
810 F.3d 1253
11th Cir.2016Background
- Zitron ran Millennium Republic and orchestrated a check-cashing scheme (2003–2005) in which an employee (Gentner) and a friend (Schnabel, alias “Charles Sohrabel”) cashed company checks totaling $2,566,981.60; Gentner gave the cash to Zitron.
- Zitron did not report that income on his 2003–2005 tax returns and filed false returns reporting negative adjusted gross income; he deposited $820,513.75 into bank accounts he owned or controlled.
- Zitron used his ex-wife’s and son’s names/SSNs to obtain credit cards without their consent.
- Indictment charged five counts of filing false tax returns (26 U.S.C. § 7206(1)), three counts of using an unauthorized access device (18 U.S.C. § 1029(a)(2)), and two counts of aggravated identity theft (18 U.S.C. § 1028A(a)(1)). He was convicted on all counts and sentenced to 81 months.
- On appeal, Zitron challenged joinder/severance (Rules 8(a), 14), alleged Fifth Amendment and burden-shifting errors from an expert’s testimony, insufficiency of evidence on aggravated identity-theft counts, and sentencing calculations (tax-loss amount and a §3B1.1 role enhancement).
Issues
| Issue | Plaintiff's Argument (Zitron) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Improper joinder under Rule 8(a) / failure to sever under Rule 14 | Joinder of tax counts with access-device/identity-theft counts prejudiced jury (family-identity evidence biased verdict on tax counts) | Counts were parts of a common scheme; evidence admissible and jury instructions cured prejudice | No reversible error: joinder proper; no compelling prejudice; jury instructions cured risk of spillover |
| Expert comments violated Fifth Amendment / shifted burden | Expert’s remarks implied Zitron’s silence and suggested defense had to explain deposits, shifting burden | Remarks addressed absence of evidence and defense’s failure to present proof; court instructed jury on burden of proof | No violation: comments not a natural/necessary comment on silence and instruction cured any burden-shifting concern |
| Sufficiency of evidence for aggravated identity theft (§1028A) | Argues lack of proof that Zitron knowingly used son’s ID "without lawful authority" because family practice of using children's names existed | Evidence showed son (Jordan) denied permission and ID used for unlawful purpose; government proved knowledge that ID belonged to another | Affirmed: sufficient evidence that use was "without lawful authority"; no plain-error reversal required |
| Sentencing: tax-loss amount and §3B1.1 role enhancement | Tax loss should be based on actual deposits ($820,513.75); no other participants for role enhancement because only Zitron filed tax returns | Tax-loss is amount that was the object of the offense (total checks $2,566,981.60); Gentner and Schnabel knowingly assisted — they are participants supporting §3B1.1 | Affirmed: district court reasonably used full check amount for tax loss; preponderance support for two-level organizer/leader enhancement |
Key Cases Cited
- United States v. Watson, 866 F.2d 381 (11th Cir.) (joinder and evidence admissibility principles)
- United States v. Walser, 3 F.3d 380 (11th Cir.) (severance and prejudice standard)
- United States v. Pierce, 733 F.2d 1474 (11th Cir.) (jury-instruction cure for joinder concerns)
- Johnson v. Breeden, 280 F.3d 1308 (11th Cir.) (presumption juries follow instructions)
- United States v. Barsoum, 763 F.3d 1321 (11th Cir.) (denial of severance where jury instructed to consider counts separately)
- United States v. Guerra, 293 F.3d 1279 (11th Cir.) (test for comments on defendant’s silence)
- Williams v. Wainwright, 673 F.2d 1182 (11th Cir.) (context matters for statements about silence)
- United States v. Simon, 964 F.2d 1082 (11th Cir.) (prosecutorial burden-shifting and cure by instruction)
- United States v. Joseph, 709 F.3d 1082 (11th Cir.) (plain-error review for unpreserved sufficiency claims)
- Flores-Figueroa v. United States, 556 U.S. 646 (Sup. Ct.) (§1028A requires knowledge that ID belonged to another)
- United States v. Hurtado, 508 F.3d 603 (11th Cir.) (scope of "without lawful authority" in identity offenses)
- United States v. Patti, 337 F.3d 1317 (11th Cir.) (standard for reviewing tax-loss calculations)
- United States v. Ramirez, 426 F.3d 1344 (11th Cir.) (clear-error review of role enhancement)
- United States v. Perez-Oliveros, 479 F.3d 779 (11th Cir.) (government’s burden for role-enhancement facts)
- United States v. Duperval, 777 F.3d 1324 (11th Cir.) (participant who knowingly aids criminal enterprise counts for §3B1.1)
- United States v. Hall, 101 F.3d 1174 (7th Cir.) (knowing aid constituting criminal participant)
- United States v. Boutte, 13 F.3d 855 (5th Cir.) (participant standard under guidelines)