United States v. Paul F. Wrubleski, 707 F. App'x 650

Paul F. Wrubleski was indicted on one count under 26 U.S.C. § 7212(a) (interfering with IRS administration) and four counts under 18 U.S.C. § 287 (filing false claims) for filing fraudulent 2007 tax returns and seeking improper refunds.
At trial the government presented testimony from IRS attorney Ken Hochman about Wrubleski’s prior Tax Court litigation challenging IRS collection efforts; the district court gave a curative instruction limiting that evidence to willfulness and denied a mistrial.
Agents recovered a handwritten note from Wrubleski’s tax preparer, Teresa Marty, that advised avoiding aggravating officials and omitting MC-2 wages; the district court admitted the note under the co-conspirator hearsay exception, Rule 801(d)(2)(E).
The government also admitted bank, credit card, and mortgage records under the business-records exception, relying on Rule 902(11) certifications; Wrubleski objected because the certifications were photocopies, not originals.
During oral jury instructions the court mistakenly said, "If the defendant fails to do that, you must find the defendant not guilty," but promptly corrected the misstatement and the written instructions correctly placed the burden on the government.
The jury convicted Wrubleski on all five counts; he appealed four evidentiary and instructional rulings, and the Eleventh Circuit affirmed.

Issue	Wrubleski's Argument	Government's Argument	Held
Admissibility of handwritten note under Rule 801(d)(2)(E) (co-conspirator exception)	Note was not a conspirator statement; insufficient proof of conspiracy with preparer Marty	Evidence showed Marty prepared the false return, communicated with and was paid by Wrubleski; note found in file with return and name	Admitted: district court did not abuse discretion — conspiracy and in furtherance elements met
Denial of mistrial for testimony about Tax Court litigation	Use of Tax Court participation improperly portrayed as culpable; litigation is lawful and not § 7212(a) conduct	Tax Court activity was relevant to willfulness; court instructed jury that litigation cannot itself be basis for § 7212(a)	No abuse: curative instruction cured any prejudice; mistrial not required
Admissibility of business records where Rule 902(11) certifications were photocopies	Certifications were not originals; originals should be required	Rule 902(11) does not require originals; duplicates admissible under Rule 1003 absent authenticity issues	Admitted: photocopied certifications acceptable; no authenticity or unfairness shown
Jury instruction misstating burden of proof (oral misstatement)	Misstatement shifted burden to defendant	Court immediately corrected; written instructions were correct	No reversible error: viewed as an inadvertent misstatement cured by correction and written charge

United States v. Jiminez, 224 F.3d 1243 (11th Cir. 2000) (abuse-of-discretion review for evidentiary rulings)
United States v. Miles, 290 F.3d 1341 (11th Cir. 2002) (elements for Rule 801(d)(2)(E) co-conspirator statements)
United States v. Cagnina, 697 F.2d 915 (11th Cir. 1983) (co-conspirator statements admissible with independent evidence of concerted action)
United States v. Newsome, 475 F.3d 1221 (11th Cir. 2007) (standard for reviewing denial of mistrial)
United States v. Garcia, 405 F.3d 1260 (11th Cir. 2005) (curative instruction sufficiency; reversal only if evidence is incurably prejudicial)
Gowski v. Peake, 682 F.3d 1299 (11th Cir. 2012) (de novo review of jury instructions for legal misstatements)
United States v. Brown, 43 F.3d 618 (11th Cir. 1995) (jury instructions reviewed as a whole to determine if they mislead jurors)