United States v. McBride, 656 F. App'x 416

Background

From 1998–2009 McBride earned substantial income through two LLCs (The Clip Company, Cliphanger) but reported little to no personal income to the IRS and used nominee entities and his wife’s accounts to obscure receipts.
He attached a Schedule K-1 to a 2005 amended Form 1040 showing $109,785 but left the 1040 income line blank and wrote that the proceeds were "not federally connected."
He earned over $400,000 from the businesses (2006–2009), sold a vacation home and received retirement distributions, yet failed to report those proceeds as income.
Indicted on one count of filing a false tax return (26 U.S.C. § 7206(1)) and three counts of attempted tax evasion (26 U.S.C. § 7201) for 2005, 2006, 2007, and 2009; he asserted a Cheek good-faith belief defense.
Jury convicted on all four counts (acquitted on a separate count related to 1999–2002); sentenced to 27 months imprisonment.
On appeal McBride argued prosecutorial misconduct in rebuttal closing (comments labeling his conduct a "ruse," invoking jurors’ taxpayer interests/civic duty, and urging conviction to protect rule of law).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor’s rebuttal comments ("ruse," "double ruse," appeals to jurors as taxpayers/civic duty) were improper	McBride: remarks were personal attacks and impermissibly appealed to jurors’ pecuniary interests and civic duty, inflaming passions and warranting a new trial	Government: most remarks were fair response to defense, invited by defense argument; only limited stray comments (if any) and curative instructions mitigated harm	Court: "ruse" and "long detour" and common-sense appeals were proper; "double ruse" was a stray off-the-cuff remark; taxpayer/civic-duty appeals likely improper but not reversible error given context, instructions, and evidence
Standard of review for prosecutorial-misconduct claim	McBride: urged de novo review of contemporaneous objections	Government: abuse-of-discretion review applies where defendant filed post-trial motion; defendant benefitted from post-trial motion anyway	Court: applied abuse-of-discretion review consistent with Tenth Circuit precedent
Whether closing remarks caused prejudice requiring reversal	McBride: rebuttal was last word to jury, government imprimatur amplified prejudice, judge failed to cure	Government: jury instructions, limited scope of remarks, judge’s caution, and overwhelming evidence of guilt cured any error	Court: although some remarks crossed line, factors (isolated nature, jury instructions, judge’s caution, acquittal on one count, strong evidence) show no prejudice; conviction affirmed

Key Cases Cited

Cheek v. United States, 498 U.S. 192 (1991) (good-faith belief that one’s conduct is lawful can negate willfulness in tax cases)
United States v. Gabaldon, 91 F.3d 91 (10th Cir. 1996) (standard of review for prosecutorial-misconduct claims where post-trial motion filed)
United States v. Fleming, 667 F.3d 1098 (10th Cir. 2011) (two-step framework for reviewing prosecutorial misconduct in argument)
United States v. Oberle, 136 F.3d 1414 (10th Cir. 1998) (requirement that improper argument must have influenced jury beyond admissible evidence to warrant reversal)
Webb v. United States, 347 F.2d 363 (10th Cir. 1965) (jurors may use common-sense inferences)
United States v. Durham, 211 F.3d 437 (7th Cir. 2000) (jurors may draw on life experience and common sense)
United States v. Anaya, 727 F.3d 1043 (10th Cir. 2013) (prosecutor given latitude when argument invited by defense)
United States v. Palma, 473 F.3d 899 (8th Cir. 2007) (appeals to jurors’ individual pecuniary interests as taxpayers are improper)
United States v. Lopez-Medina, 596 F.3d 716 (10th Cir. 2010) (closing argument must be confined to record evidence and reasonable inferences)
United States v. Rogers, 556 F.3d 1130 (10th Cir. 2009) (prosecutor may not incite jury passions or claim jury’s civic duty to convict)
Wilson v. Sirmons, 536 F.3d 1064 (10th Cir. 2008) (impropriety of suggesting civic duty to convict)
United States v. Taylor, 514 F.3d 1092 (10th Cir. 2008) (appeals to societal ills and public policy are improper in closing)
United States v. Brooks, 727 F.3d 1291 (10th Cir. 2013) (defendant entitled to a fair, not perfect, trial)
Stouffer v. Trammell, 738 F.3d 1205 (10th Cir. 2013) (personal attacks on defense counsel are improper)
United States v. Oliver, 278 F.3d 1035 (10th Cir. 2001) (credibility determinations are for the jury)
United States v. Almaraz, 306 F.3d 1031 (10th Cir. 2002) (presumption that jurors follow instructions)