United States v. Litwok
2012 U.S. App. LEXIS 8727
| 2d Cir. | 2012Background
- Litwok was convicted after a jury trial in the Eastern District of New York of one count of mail fraud and three counts of tax evasion for 1995–1997; the mail fraud claim involved a lodging reimbursement in Duke Drive; the mail fraud and tax counts were joined; Litwok appeals challenging sufficiency of evidence and joinder; the Second Circuit reverses on 1996–1997 tax counts, vacates 1995 counts, and remands as to 1995–1997 counts; the trial included evidence of forged signatures, false receipts, and commingling of funds; on appeal the court applies deferential sufficiency review and considers potential prejudice from misjoinder; the court discusses jury instructions and notes the potential plain error in the tax-evasion instruction.
- The court held that (a) the mail fraud conviction was supported by substantial evidence, (b) the 1995 tax count had sufficient affirmative act evidence, (c) the 1996 and 1997 tax counts lacked sufficient affirmative acts and were reversed, (d) the misjoinder of Counts One and Two requires vacating those counts, and (e) the case is remanded for further proceedings with potential retrial.
- The district court’s joinder of tax counts with non-tax counts was improper, and the 1995 tax-evasion evidence colorably prejudiced the jury’s consideration of the mail fraud count; the 1996 and 1997 tax counts lacked proof of an affirmative act; the judgment is reversed as to Counts Three and Four, and Counts One and Two are vacated and remanded.
- Litwok argued insufficient evidence for aiding and abetting mail fraud; the government argued sufficient circumstantial proof of intent and control over funds. The government argued that the recorded call and depositions supported intent and control. The court held the evidence sufficient for the mail-fraud conviction given the totality of circumstantial evidence.
- Litwok argued that the 1996–1997 tax counts were improperly joined and that failure to file returns alone sufficed for evasion; the government forfeited some arguments; the court reversed Counts Three and Four and vacated Counts One and Two, remanding for retrial and potential correction of instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of mail fraud conviction | Litwok argues no conscious assistance | Govt. showed intent and control | Sufficient evidence supports conviction |
| Sufficiency of 1995 tax count | Affirmative act shown by blocking K-1 forms | Narrowly supports intent | Affirmative act sufficient; Count Two sustained |
| Sufficiency of 1996–1997 tax counts | No affirmative act beyond failure to file | Affirmative acts existed | Insufficient evidence; Counts Three and Four reversed |
| Joinder of Counts One and Two | Misjoinder prejudicial | Judicial economy justifies joinder | Misjoinder prejudicial; vacate Counts One and Two; remand |
| Jury instruction as to tax evasion element | Instruction error favored conviction | No Plain Error shown | Plain error acknowledged; instruction to be corrected on retrial |
Key Cases Cited
- United States v. Bahel, 662 F.3d 610 (2d Cir. 2011) (credibility and sufficiency in evaluating evidence on appeal)
- United States v. Shellef, 507 F.3d 82 (2d Cir. 2007) (joinder and sufficiency in fraud cases; use of evidence to prove scheme)
- United States v. Klausner, 80 F.3d 55 (2d Cir. 1996) (affirmative acts in tax evasion)
- United States v. Josephberg, 562 F.3d 478 (2d Cir. 2009) (elements of tax evasion including affirmative act)