945 F.3d 553
1st Cir.2019Background
- Takesian, a CPA, ran Takesian & Company (T&C). From 2008–2011 he diverted roughly $1M of T&C funds for personal use but did not report that income on his personal tax returns.
- He delivered unfiled draft T&C returns to prosecutors, later filed corporate returns claiming large undocumented "loans" to an officer and filed amended personal returns that still underreported income.
- A jury convicted him of four counts of filing false tax returns (26 U.S.C. § 7206(1)) and one count of attempting to obstruct the administration of the internal-revenue laws (26 U.S.C. § 7212(a)).
- At sentencing the district court imposed concurrent 24-month prison terms, supervised release, fines, and $286,433 in restitution.
- On appeal Takesian raised three challenges: 1) admission of a 2006 false-statement conviction for impeachment under Fed. R. Evid. 609(b); 2) failure to give a Marinello-based instruction that obstruction requires a pending or reasonably foreseeable IRS proceeding; and 3) restitution in excess of the jury’s tax-loss range.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of 2006 false-statement conviction (Rule 609(b)) | Takesian: prior conviction was remote and prejudicial; judge erred by not making on-the-record Rule 609(b) findings and by risking propensity inference | Government: conviction was probative of credibility; no requirement for on-the-record findings; jury instructions prevented impermissible use | Affirmed. Plain-error review applied; no clear or obvious error shown and appellant failed to show prejudice or that on-the-record findings were required |
| Obstruction instruction (Marinello nexus and foreseeability) | Takesian: judge should have instructed that a proceeding was pending or reasonably foreseeable; omission was plain error requiring reversal | Government: evidence (subpoenas, produced drafts, agent questioning, timing of filings) made IRS investigation reasonably foreseeable; any instructional omission was harmless under plain-error standards | Affirmed. Court assumed instruction error but found no reasonable probability a correct instruction would have led to acquittal; substantial-evidence of foreseeability |
| Restitution amount exceeding jury tax-loss range | Takesian: jury found loss ≤ $250,000 beyond a reasonable doubt; judge erred by ordering $286,433 restitution | Government: restitution is determined by preponderance at sentencing and may exceed jury’s higher standard finding | Affirmed. Sentencing judge may use preponderance to calculate restitution; Pena governs and no abuse of discretion shown |
Key Cases Cited
- Marinello v. United States, 138 S. Ct. 1101 (Sup. Ct. 2018) (obstruction under § 7212 requires nexus to a proceeding and that the proceeding be pending or reasonably foreseeable)
- United States v. Marcus, 560 U.S. 258 (Sup. Ct. 2010) (plain-error instruction review requires showing a reasonable probability the error affected the outcome)
- United States v. Pena, 910 F.3d 591 (1st Cir. 2018) (sentencer may determine restitution by preponderance and may reach conclusions different from jury findings)
- Domínguez Benítez v. United States, 542 U.S. 74 (Sup. Ct. 2004) (plain-error standard promotes timely objections)
- Puckett v. United States, 556 U.S. 129 (Sup. Ct. 2009) (elements and purpose of plain-error review)