UNITED STATES of America, Plaintiff-Appellee, v. David MINER, Defendant-Appellant.
No. 13-5790
United States Court of Appeals, Sixth Circuit.
Argued: Oct. 3, 2014. Decided and Filed: Dec. 12, 2014.
774 F.3d 336
The elements of a
IV.
The district court applied the Guidelines correctly. We AFFIRM.
construction that “[w]hen interpreting a statute, all parts of a statute should be given effect, and an interpretation making any part superfluous or meaningless should be avoided.” Accepting the Government‘s argument would render the second prong of the statute superfluous because every consensual touching of a person under fifteen years of age would necessarily also be a non-consensual touching in violation of the first prong.
Before: SILER, CLAY, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
David Miner was prosecuted and convicted under
I.
Uninspired by Justice Holmes‘s well-known sentiment that “[t]axes are what we pay for civilized society,” Compania Gen. de Tabacos de Filipinas v. Collector of Internal Revenue, 275 U.S. 87, 100, 48 S.Ct. 100, 72 L.Ed. 177 (1927) (Holmes, J., dissenting), Miner marketed two schemes that promised to defeat their proverbial inevitability.1 Miner‘s first scheme operated under the name of IRx Solutions and offered to assist clients in requesting alterations to their Individual Master Files (“IMFs“), which are internal IRS records pertaining to each taxpayer. Miner told prospective clients that the IRS was engaged in widespread fraud by improperly coding individuals as businesses on their IMFs so that tax could be assessed against them. According to Miner, in fact, “everybody‘s [IMF] is wrong” and needed alteration. For an annual $1,800 fee, IRx Solutions promised to help individuals obtain their IMFs from the IRS, to “decode” them in order to expose “erroneous information,” to “gather the evidence necessary to effectively challenge the IRS with substantiated allegations of fraud,” and to “force the IRS to make the changes to your IMF necessary to get it out of your life.” Further, IRx Solutions would “write letters to the IRS for you” in order to achieve its goal of altering the client‘s IMF.
The second scheme was offered by a second Miner company, the Blue Ridge Group. Under this program, Miner helped clients create common-law business trusts, into which he claimed that they could place any or all of their assets in order to avoid paying income tax.
Numerous clients purchased one or both of Miner‘s programs. In August 2006, the IRS began an undercover criminal investigation into Miner‘s activities. Ultimately, Miner was charged in a superseding indictment with one count of corrupt endeavor to obstruct or impede the due administration of the internal revenue laws, in violation of
At trial, one of Miner‘s employees testified about the general operation of the companies’ schemes. In the IMF resolution program, for example, clients would be instructed to file Freedom of Information Act (“FOIA“) and Privacy Act requests in order to obtain their IMFs. Miner would give the clients form letters to send to the IRS when their requests were not met favorably. The letters contained notices that if the IRS did not comply with the client‘s demands, the client would pur-
Several of Miner‘s clients also testified at trial about their interactions with him. Jeff Myslewski, for example, specifically testified that he purchased both the IMF resolution program and the trust creation program only after informing Miner that the IRS was actively pursuing him to pay assessed funds. Myslewski testified that one of the first things that he told Miner was that he was starting an offer in compromise with the IRS due to pending tax issues. Miner then told him about the IMF resolution program and about creating a business trust. Thus, only after Myslewski told Miner “what [his] specific situation with the IRS was“—including that federal tax liens had been filed against him several years earlier—did Miner assist Myslewski in creating a trust and in starting the process of obtaining his IMF.
Myslewski forwarded to Miner copies of IRS notices of deficiency and of taxes past due that Myslewski had previously received from the IRS. Soon afterward, Miner drafted a letter that he advised Myslewski to “mail to the IRS in response to its Notice of Deficiency.” Miner told Myslewski that, although the IRS “[m]ost likely will not answer the letter ... also most likely, this letter will stall the IRS long enough for us to clean up your IMF.” The letter itself (which Myslewski sent to the IRS) berated the IRS for keeping “fraudulent details” in the IMF file and informed the IRS that “I expect to bring charges against more than one IRS employee for the fraud clearly evident in my IMF and other files.” When the IRS responded to the letter by informing Myslewski that he needed to file an amended tax return in order to amend his IMF, Miner prepared another letter for Myslewski to send to the IRS, threatening legal action and castigating the IRS for knowingly violating the law by refusing to comply with his request to amend the IMF. Myslewski similarly testified that the trust that he purchased from Miner was intended to be a tax-exempt entity, meaning that he purportedly could place his personal income in the trust and pay no taxes on it.
Other clients similarly testified that Miner helped them navigate existing IRS difficulties and advised them to create trusts for the purpose of avoiding the payment of income tax. For instance, Hans Himmel testified that he purchased Miner‘s programs because Miner promised that they would make him “invisible” to the IRS so that he would no longer need to pay income tax. So did Roger McGee. Steve Puleo similarly testified that Miner created a trust for him so that his company could pay him as a contractor without withholding taxes—a setup that Puleo agreed was “an arrangement for tax evasion.” Puleo further testified that when the IRS directed his company to withhold the taxes notwithstanding the creation of the trust, Miner prepared and sent to the IRS letters complaining of its “illegal directive” to pay the taxes in question and threatening to sue the IRS unless it ceased its collection activity.
David Ebert likewise testified that he asked Miner to create a trust for him because he wanted to avoid paying income taxes. According to Ebert, Miner told him not to open an interest-bearing account for his trust in order to avoid the earned interest being reported by the bank to the IRS. Ebert also testified that Miner advised him that most clients wanted to avoid associating their social security numbers with the trusts’ bank accounts because the IRS often searched for taxpayer assets using the taxpayer‘s social security num-
Miner also gave Ebert instructions about what to do if the IRS contacted him, including a list of questions that would help Ebert “act as if you are cooperating with the IRS” but were in fact intended to prod the IRS into terminating the encounter. Finally, Ebert identified an email that he received from Miner after his trust was created, informing Ebert that he could “place [his] home, investments and cash assets in a second trust and they would be out of reach of the IRS for any other liability issues.”
According to the government‘s evidence, most of the letters prepared by Miner for his clients were written in response to pending IRS action. Joan Homick, for example, forwarded Miner a February 2010 letter that she received from the IRS that identified a $75,000 tax deficiency and observed that she had presented “a lot of frivolous arguments” that were the product of “bad advi[c]e.” Miner drafted a response for her, entitled “Notice of Pending Legal Action and Demand for Records Correction,” falsely informing the IRS revenue officer that “I am in the process of taking legal action against certain specific IRS employees” and warning that “[t]he legal remedy I am seeking will include you if you continue forward with your unlawful actions.” Greg Lewis, another of Miner‘s clients, testified that Miner prepared an almost identical letter for him in response to the IRS‘s failure to alter his IMF as requested. Miner also wrote letters to a private corporation and to a bank on behalf of one of his clients, urging them not to comply with supposedly fraudulent IRS levies seeking the assets of his client and threatening legal action if they did.
The government also presented testimony from an IRS agent that Privacy Act requests like those submitted as part of Miner‘s IMF resolution program are frivolous and a waste of IRS resources, especially because the Privacy Act cannot be used to amend tax records. An expert witness also detailed the unusual characteristics of the trusts created by Miner for his clients, noting that they purportedly allowed the grantors simultaneously to disclaim ownership of assets and maintain control of them. In the expert‘s opinion, the trusts were “sham” entities that were designed to avoid “pay[ing] taxes on ... income.” The witness also described the letters sent by Miner to the IRS as “frivolous ... protest” letters to which the IRS would not respond.
Finally, IRS special agent Susanne Lee testified, summarizing her investigation into Miner‘s activity. Miner objected to much of her testimony, noting that Agent Lee had not been tendered as an expert witness and that significant portions of her testimony were argument, intruding into the province of the jury. The district court overruled almost all of Miner‘s objections.
After the government rested, Miner moved for a judgment of acquittal under
At the conclusion of the evidence, Miner requested that the jury be instructed that he could be convicted under
The jury found Miner guilty on all counts. Miner was subsequently sentenced to eighteen months of imprisonment on the
II.
On appeal, Miner argues only that his conviction on count one (corrupt endeavor to impede the administration of the internal revenue laws) should be reversed; he does not challenge the other two counts of conviction. According to Miner, his conviction on count one should be reversed because (1) the district court failed to instruct the jury that Miner could be convicted only if he was aware of a pending IRS proceeding that could be impeded; (2) his conduct was constitutionally protected, meaning that the trial evidence was insufficient to support his conviction; and (3) portions of Agent Lee‘s trial testimony should not have been admitted. Although we agree with Miner that the district court erroneously instructed the jury and that certain aspects of Agent Lee‘s testimony were improper, we agree with the government that the errors were harmless.
A.
The mainstay of Miner‘s assertions on appeal is his argument that
1.
We agree with Miner that the district court should have instructed the jury that it could convict him only if it found that he was aware of a pending IRS proceeding.
corruptly or by force or threats of force (including any threatening letter or communication) endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under this title, or in any other way corruptly or by force or threats of force (including any threatening letter or communication) obstructs or impedes, or en-
deavors to obstruct or impede, the due administration of this title.
Miner‘s argument turns not upon the plain language of the statute but upon two of our previous cases, which reach differing conclusions regarding whether a conviction under
Miner relies heavily upon our decision in Kassouf. There, a panel of this court narrowly construed the omnibus clause, focusing on
Our court in Kassouf, recognizing that this construction of the statutory language was not the only plausible interpretation of the omnibus clause, relied heavily on the analysis driving the Supreme Court‘s decision in United States v. Aguilar, 515 U.S. 593, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995). Aguilar involved the proper construction of the federal obstruction-of-justice statute, which contained an omnibus clause that criminalized anyone who “corruptly ... endeavors to influence, obstruct, or impede, the due administration of justice.” Id. at 598, 115 S.Ct. 2357 (quoting
Observing that
In response to Miner‘s reliance upon Kassouf, the government argues that Kassouf‘s broad impact was narrowed by a case decided by a different panel of our court a year later: United States v. Bowman, 173 F.3d 595 (6th Cir.1999). In Bowman, the defendant was prosecuted under
The government contends that Bowman, not Kassouf, controls Miner‘s case. It is mistaken.
The government‘s error lies in its characterization of Kassouf as an exception to Bowman, rather than the other way around. To the extent that Kassouf and Bowman conflict, of course, the first-in-time (Kassouf) controls. See Ward v. Holder, 733 F.3d 601, 608 (6th Cir.2013). And Kassouf and Bowman are less reconcilable than the government asserts. After all, Bowman, in rejecting Kassouf‘s application to a defendant who was attempting to instigate a frivolous IRS proceeding rather than to impede a preexisting one, did so primarily because it believed that the indicia of intent to impede were patently obvious, even though there was no IRS proceeding pending at the time of the defendant‘s conduct. See Bowman, 173 F.3d at 600 (stressing the defendant‘s “deliberate filing of false forms with the IRS specifically for the purpose of causing the IRS to initiate action against a taxpayer“). Thus, Bowman rejected Kassouf as erecting an inflexible baseline proxy test for intent—awareness of a pending proceeding—that was under-inclusive as applied to the defendant in Bowman.
Thus, although Bowman purported to limit Kassouf to its facts, it would be more accurate to conclude that the opposite is true. Kassouf applies, at minimum, to a defendant who fails to keep “records necessary to determine the tax consequences” of personal transactions, “ma[kes] it more difficult to discover and trace his activities by transferring funds between bank accounts before making expenditures,” and “affirmatively misle[ads] the IRS” by filing tax forms that fail to disclose relevant financial transactions and assets. 144 F.3d at 953. Kassouf, in other words, applies to defendants whose conduct in failing to disclose or in peculiarly structuring their income and financial transactions generally makes it more difficult for the IRS to identify and collect taxable funds. Id. Bowman, by contrast, is reducible to a rule that a defendant who intentionally attempts to instigate a frivolous IRS proceeding cannot claim to have lacked the necessary intent to impede the IRS‘s administration of its statutory duties with respect to that proceeding. 173 F.3d at 600. As is evident, Bowman is much the narrower of the two decisions.
We recognize that several of our sister circuits have concluded that Bowman functionally eviscerated Kassouf. See, e.g., Floyd, 740 F.3d at 32 n. 4; United States v. Wood, 384 Fed.Appx. 698, 704 (10th Cir.2010); United States v. Willner, 2007 WL 2963711, at *4 (S.D.N.Y. Oct.11, 2007). But where the rationales of Kassouf and Bowman conflict, we are bound to follow the former, not the latter. See Ward, 733 F.3d at 608. In summary, post-Kassouf and post-Bowman, a defendant may not be convicted under the omnibus clause unless he is “acting in response to some pending IRS action of which [he is] aware.” McBride, 362 F.3d at 372 (internal quotation marks omitted). The extension of Bowman that is urged by the government in this case does not represent a path that was unconsidered by Kassouf; it represents the path that was not taken.
2.
Having clarified the applicable law, it is not difficult for us to determine which rule applies to Miner. Even Miner‘s attempts to have the IRS amend his clients’ IMFs are more akin to filing false tax forms to hide one‘s own income and assets (as in Kassouf) than to filing false tax forms in order to sic the IRS on one‘s creditors (as in Bowman). Because Miner‘s conduct was not specifically intended to provoke frivolous IRS investigations into third parties but instead had the effect only of making it relatively more difficult for the IRS to assess and collect income taxes from certain individual taxpayers, the government was required to prove that he was aware of “some pending IRS action” involving those taxpayers when he engaged in his impeding conduct. See Kassouf, 144 F.3d at 957; id. at 955 (accepting defendant‘s argument that “it cannot be sufficient to impose criminal liability upon mere allegations that the IRS‘s job was made harder” by the defendant‘s conduct). Miner is therefore correct that the district court should have given a jury instruction consistent with Kassouf in this case, where Miner‘s conduct simply had the potential to make it more difficult for the IRS to identify taxable assets and recover funds from his clients.
The requirement is that the government prove the defendant‘s awareness of “some pending IRS action.” Kassouf, 144 F.3d at 957. Such action “may include, but is not limited to, subpoenas, audits or criminal tax investigations.” Id. at 957 n. 2. This means that the government must prove that the defendant is aware that the IRS has taken some step to investigate a particular taxpayer beyond routine administrative procedures such as those required to accept and process tax filings in the ordinary course. See id. at 958. In other words, the impeding conduct must be linked to a specific IRS inquiry into a particular taxpayer: Once the defendant knows that the IRS‘s interest in a given taxpayer (including himself) has been piqued in a manner that is out of the ordinary, any attempt to corruptly impede the IRS‘s inquiries into the taxpayer after that point is potentially criminal. See id. at 957-58 (emphasizing that, without a link to a pending proceeding, a defendant could only speculate whether his conduct ever would impede the IRS).
At Miner‘s trial, a welter of evidence was introduced demonstrating his knowledge of pending IRS proceedings at the time that he engaged in the obstructive conduct for which he was convicted. Indeed, the central issue that was contested at trial was whether Miner acted corruptly; there was no real dispute that he acted at least with awareness that the IRS was actively investigating his clients when he engaged in most of his conduct.
Miner‘s interactions with Myslewski are an instructive example. The IRS, of course, does not issue notices of deficiency or obtain tax liens against individuals as a routine matter; it takes these steps only after determining that a particular taxpayer must be pursued for additional funds. See, e.g.,
In light of this and similar evidence, it is beyond a reasonable doubt that the verdict against Miner was not affected by the district court‘s failure to instruct the jury that
B.
Miner also contends that the statute is unconstitutional as applied to his circumstances. In Miner‘s view,
He is mistaken in both respects. First, to the extent that Miner challenges the omnibus clause on overbreadth and vagueness grounds, Kassouf‘s pending-proceeding requirement substantially narrows the statute‘s sweep. See Kassouf, 144 F.3d at 958. So does the statute‘s mens rea requirement, which restricts the omnibus clause‘s reach only to conduct that is committed “corruptly.” See, e.g., Floyd, 740 F.3d at 31; United States v. Kelly, 147 F.3d 172, 176-77 (2d Cir.1998); United States v. Reeves, 752 F.2d 995, 999-1001 (5th Cir.1985); United States v. Brennick, 908 F.Supp. 1004, 1012 (D.Mass.1995). See also United States v. Kay, 513 F.3d 461, 463 n. 1 (5th Cir.2008) (noting that “corruptly” is almost a willfulness requirement); Kelly, 147 F.3d at 177 (same). Combined, these features of the omnibus clause ward off Miner‘s overbreadth and vagueness challenges.
That the statute applies only to conduct committed “corruptly” similarly defeats Miner‘s argument that all of his activities were constitutionally protected. If a defendant embarks upon a course of conduct specifically for the purpose of gaining an unlawful benefit or advantage, he is not necessarily insulated from punishment simply because the discrete acts in which he engages may be otherwise constitutionally or statutorily authorized. For example, although an individual certainly has a general right under the Petition Clause “to appeal to courts and other forums established by the government for resolution of legal disputes,” Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 387, 131 S.Ct. 2488, 2494, 180 L.Ed.2d 408 (2011), someone who files a frivolous lawsuit may legitimately be punished for malicious prosecution or abuse of process. Bill Johnson‘s Restaurants, Inc. v. NLRB, 461 U.S. 731, 743, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983). At that point, in fact, the defendant is no longer exercising a constitutional right: “[S]ince sham litigation by definition does not involve a bona fide grievance, it does not come within the first amendment right to petition.” Id. (citation omitted). Quite simply, then,
That said, a prosecution based on conduct that is closely related to citizens’ rights to access the courts and to obtain information about their government must tread carefully. Nonfrivolous court filings—even those that are intended to impede the IRS‘s ability to collect taxes—are at the very core of the Petition Clause, meaning that even frivolous claims “are at least adjacent to areas of protected activity.” Reeves, 752 F.2d at 1001. In this respect, the government overstated its case, suggesting at trial that it was appropriate to base Miner‘s conviction on his threats to sue IRS officials because “You threaten [to sue] public officials at your own peril.” To the extent that the government suggests that a defendant legitimately may be criminally prosecuted for nonfrivolously informing governmental officials that they will be held accountable for their conduct in a court of law, its argument is incorrect. See Borough of Duryea, 131 S.Ct. at 2499 (“The right to petition traces its origins to Magna Carta....“). If Miner had been nonfrivolously expressing his clients’ likelihood of suing IRS officials, was truly attempting to obtain information from the IRS via Privacy Act and FOIA requests, or was legitimately creating trusts to structure clients’ finances in a manner that he believed was legal, then his conduct would not have been criminal.
But the jury found that Miner actually was doing none of those things. Instead, it concluded that Miner was using his letters and trusts for an entirely different purpose: to keep the IRS away from funds to which he knew it was legally entitled. Because the jury found that Miner acted “corruptly“—that is, for the specific purpose of achieving an unlawful advantage, see McBride, 362 F.3d at 372—when he threatened suit, filed FOIA and Privacy Act requests, and created the trusts in question, his conviction under
C.
Miner‘s final argument is that portions of Agent Lee‘s testimony were erroneously admitted at trial. We review a district court‘s evidentiary rulings for an abuse of discretion, which occurs when the district court “relies on clearly erroneous findings of fact, improperly applies the law, or employs an erroneous legal standard,” Griffin v. Finkbeiner, 689 F.3d 584, 592 (6th Cir.2012) (internal quotation marks omitted), or when we are “firmly convinced that a mistake has been made, i.e., when we are left with a definite and firm conviction that the trial court committed a clear error of judgment.” United States v. Heavrin, 330 F.3d 723, 727 (6th Cir.2003) (citation omitted). Even if the district court‘s evidentiary ruling was erroneous, it amounts to reversible error “only if it was not harmless; that is, only if it affected the outcome of the trial.” Cummins v. BIC USA, Inc., 727 F.3d 506, 510 (6th Cir.2013), cert. denied, U.S., 134 S.Ct. 935, 187 L.Ed.2d 784 (2014).
The government argues that Agent Lee‘s testimony was properly admitted
Over Miner‘s objection, Agent Lee was permitted to testify that, based on her review of the letters that Miner had prepared for his clients to send to the IRS, “it appears as though they were sent to impede the IRS rather than to obtain answers to real questions.” Despite Miner‘s continued objections, Agent Lee testified in detail why she believed that the letters were intended to impede the IRS rather than to further a legitimate purpose: because (1) the letters were sent by individuals who had not filed tax returns for years; (2) the letters sought tax record emendations that were not possible under the Privacy Act; (3) the letters were “generally somewhat threatening or forceful in nature and included a clause that if you don‘t respond within 30 days, I will assume I am right, and that is not indicative of somebody who really wants to know the truth and to understand the tax law“; (4) follow-up letters demanding the same unrealizable remedies were sent even after the IRS responded that the writers should pursue other mechanisms for amending their tax information; and (5) “if somebody really wanted to understand the truth, they could simply go to the IRS office, obtain their transcript and ask somebody what some of the stuff means.” Later, she identified specific portions of the letters that she believed were “specifically intimidating.”
This, as Miner points out, is opinion and argument. Miner was correct to label it as such at trial, and the district court should not have admitted it into evidence. The government attempts to justify its conduct by claiming that the inference that Agent Lee drew from the materials was so obvious that it was acceptable for her to testify about it. But that misses the point. The jury, not the witness, must draw the inference; and the government should not “spoon-fe[e]d” its theory of the case to the jury through a government agent “with an aura of expertise and authority” who might prompt the jury uncritically to substitute the agent‘s view of the evidence for its own. United States v. Freeman, 730 F.3d 590, 597, 599 (6th Cir.2013).
The other problem with Agent Lee‘s testimony is that she was permitted to opine at length about “a mental state which constitutes an element of the crimes charged.” United States v. Windfelder, 790 F.2d 576, 582 (7th Cir.1986). Our rules of evidence do not permit government witnesses in tax cases to “directly embrace the ultimate question” of a defendant‘s intent. United States v. Sabino, 274 F.3d 1053, 1067 (6th Cir.2001) (internal quotation marks omitted), amended and superseded in part on other grounds, 307 F.3d 446 (6th Cir.2002). Even when a government agent is testifying as an expert witness in a criminal tax case, “the agent may not testify about the defendant‘s state of mind.” United States v. Powers, 702 F.3d 1, 10-11 (1st Cir.2012). That is because even an expert witness in a criminal case “must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.”
Agent Lee‘s testimony violated this rule of evidence, detailing to the jury why she believed that Miner‘s letters were intended to “impede” the IRS rather than to seek legitimate relief. The motivation behind Miner‘s conduct was directly probative of the mens rea requirement of
Given that the admission of these aspects of Agent Lee‘s testimony was error, the remaining question is whether it was harmless, in light of the evidence otherwise indicating that Miner‘s purpose in engaging in all of his conduct—not only in sending the letters, but in creating the IMF decoding program and constructing the trusts—was to impede the IRS‘s ability to locate and recover taxable assets. If an evidentiary error did not “substantially sway[]” the jury, United States v. Hardy, 643 F.3d 143, 153 (6th Cir.2011), or “had but very slight effect,” Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), and thus did not “materially affect[]” the verdict, it is not a basis for reversal. United States v. Trujillo, 376 F.3d 593, 611 (6th Cir.2004). Where “the record is so evenly balanced that a conscientious judge is in grave doubt as to the harmlessness of an error,” the judgment must be reversed. O‘Neal v. McAninch, 513 U.S. 432, 437, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995); Jaradat v. Williams, 591 F.3d 863, 869 (6th Cir.2010). “[T]he scale, if equal, tips in favor of the defendant.” Ruelas v. Wolfenbarger, 580 F.3d 403, 413 (6th Cir.2009).
The error here was harmless. First, Agent Lee testified improperly only regarding Miner‘s intent vis-à-vis the letters that Miner wrote; her testimony did not touch upon his intent on setting up his schemes in the first place. Second, voluminous evidence was properly admitted at trial indicating that Miner was aware of pending IRS proceedings implicating his clients when he advised them to put their assets into anonymous trusts and to write letters to the IRS threatening legal action. Such awareness, when paired with frivolous efforts at defeating assessment or recovery of tax, overwhelmingly established Miner‘s corrupt intent. See Aguilar, 515 U.S. at 599, 115 S.Ct. 2357; Kassouf, 144 F.3d at 958.
Third, the mechanisms that Miner used to respond to the IRS‘s assessment and collections efforts were transparently frivolous. Miner advised his clients to avoid linking their trusts to themselves via their social security numbers and to fund the trusts with cash to avoid leaving a paper trail, and several of his clients admitted that the entire purpose of the trusts was to hide their assets from the IRS. A duly qualified expert witness agreed that the trusts were “sham” creations with almost no conceivable purpose other than an attempt to avoid paying income tax. Finally, even Miner believed that the letters he sent to the IRS were frivolous: he advised at least one of his clients to forward a prepared letter “in response to [an IRS] Notice of Deficiency” that, although it would probably not be answered by the IRS, would hopefully “stall the IRS long enough for us to clean up your IMF.”
Given the abundant evidence that Miner knew that many of his clients were attempting to resolve extant IRS proceedings and that his solutions were (a) to hide assets from the IRS in fictive trusts, and (b) to badger the IRS with admittedly-frivolous letters in the hope that the IRS would be too bogged down to contest requested amendments to clients’ taxpayer records, we conclude beyond a reasonable
III.
For these reasons, we affirm the judgment of the district court.
SILER, CLAY, and GRIFFIN
CIRCUIT JUDGES