UNITED STATES of America, Plaintiff-Appellee,
v.
Gregory D. GOOSBY, Defendant-Appellant.
United States Court of Appeals, Sixth Circuit.
*635 ARGUED: Arthur E. Quinn, The Bogatin Law Firm, PLC, Memphis, Tennessee, for Appellant. Stuart J. Canale, Assistant United States Attorney, Memphis, Tennessee, for Appellee. ON BRIEF: Arthur E. Quinn, The Bogatin Law Firm, PLC, Memphis, Tennessee, for Appellant. Stuart J. Canale, Assistant United States Attorney, Memphis, Tennessee, for Appellee.
Before: RYAN, SILER, and COLE, Circuit Judges.
OPINION
SILER, Circuit Judge.
Defendant Gregory Goosby appeals his jury conviction and sentence on thirty counts of willfully aiding or assisting in the preparation and presentation of false or fraudulent income tax returns under 26 U.S.C. § 7206(2). He challenges (1) the sufficiency of the evidence, (2) the district court's evidentiary ruling on a motion in limine, (3) the jury charge regarding IRS publications, and (4) the reasonableness of his sentence. We AFFIRM.
BACKGROUND
Goosby operated a tax preparation business or, as he would characterize it, an electronic tax-filing center from his home. Goosby's business prepared 558 returns in 1999, 877 returns in 2000, and 1,435 returns in 2001. In 2006, Goosby was indicted on thirty-three counts of violating 26 U.S.C. § 7206. The government dismissed three counts, and Goosby was found guilty on the remaining thirty counts. He was sentenced to a 46-month term of imprisonment.
The witnesses at trial included IRS employees, numerous taxpayers, and several of Goosby's former employees. The trial began with testimony to explain the background of the IRS investigation. Investigative Analyst Carl Gibeault explained that he received a list of tax return preparers for the region that included Goosby's business. Gibeault used a computer program that allows him to review all the returns by a given tax preparer and rank the returns by amount of refund. He then compared the ratio of adjusted gross income to the amount of deductions; a high ratio is an indicator of potential fraud. Gibeault found a high ratio for returns prepared by Goosby's business and referred the case for further investigation.
The taxpayer witnesses testified to similar experiences in their dealings with Goosby's tax preparation business. The greatest areas of commonality concerned how the taxpayers came to employ Goosby's business, what they experienced while meeting with Goosby or his employees, their reliance on Goosby's business to properly prepare their returns and determine their entitlement to deductions, and the type and number of deductions on their returns. Eighteen of the taxpayers testified that they relied on Goosby to properly prepare their tax returns. At least ten of these taxpayers met or talked with Goosby in person and provided him with documents and/or answered questions asked by Goosby. The remaining taxpayer witnesses met with Goosby's employees *636 and provided them with documents and/or answered questions asked by the employees. Most of the taxpayers testified that neither Goosby nor his employees reviewed the completed tax returns with them, and most did not receive a copy of their return from Goosby or his employees as IRS regulations require.
During the trial, the taxpayers were shown copies of their returns, and all identified deductions for which they had provided no information or deductions that were based on answers given to Goosby or his employees in response to questions. They identified numerous false or inflated deductions of which they were unaware. Nearly all of the taxpayers identified false deductions for personal property taxes and/or false charitable contribution deductions. Most also identified false or inflated reporting of un-reimbursed employee expensesgenerally, some combination of deductions for cell phones, computers, internet access, extra phone lines, uniforms, dry cleaning, laundry expenses, work boots, mileage, meals, entertainment, and travel. Instead of providing the information needed to properly determine whether they were eligible for specific deductions, most of the taxpayers testified that they were simply asked questions about how far they drove to work and how much they paid for items such as cell phones and computers. Their tax returns then claimed deductions for the full cost of these items. As a result of the false deductions, most of the taxpayers were audited or voluntarily filed amended tax returns, and most paid thousands of dollars in additional taxes.
One of the taxpayers, Idella Branch, filed a tax return that contained only one deduction, for gambling losses. In 2001, she won two jackpots totaling approximately $163,000 and took home around $104,000 after taxes. Branch testified that she loaned approximately $55,000 to family members and spent or gambled away the rest. Her tax return, prepared by Goosby, reported $162,886 of gambling losses, thereby entitling her to a refund of the previously withheld taxes. Branch testified that it was impossible for her to have lost that amount and that she never told Goosby she had lost that amount.
The employee witnesses all testified that they were data entry personnel. Their job was to enter data into a computer program that filled out the customers' tax returns. They had no training in tax preparation. Several employees testified that they relied on Goosby to determine whether particular items were deductible; others testified that the returns were reviewed, presumably by Goosby, before being submitted to the IRS. Some of the employees testified that they asked customers questions about mileage and how much they paid for items such as uniforms, cell phones, and computers; these amounts were either recorded and passed on to someone else or entered directly into the computer program.
Goosby testified at the trial and denied any wrongdoing. He denied that he was a tax preparer and admitted to preparing only one tax return, a 1999 amended return. He essentially accused the taxpayer witnesses of lying.
DISCUSSION
A. Sufficiency of the Evidence
When a defendant claims there is insufficient evidence to support a conviction, we must decide "whether, after viewing the evidence in a light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Gardner,
Goosby was convicted of thirty violations of 26 U.S.C. § 7206(2). An offense under § 7206(2) has three essential elements:
(1) that defendant aided, assisted, procured, counseled, advised or caused the preparation and presentation of a return;
(2) that the return was fraudulent or false as to a material matter; and
(3) that the act of the defendant was willful.
United States v. Sassak,
1. Willfulness
The element of willfulness requires the government to prove an "intentional violation of a known legal duty." Sassak,
A defendant may be convicted under § 7206 even if his involvement in the preparation of certain returns was minimal. See United States v. Searan,
In this case, the similarity in the type of false deductions claimed on most of the tax returns is strong circumstantial evidence that the defendant willfully submitted tax returns containing false statements. Viewing the evidence in the light most favorable to the government, the jury could find beyond a reasonable doubt that Goosby was responsible for submitting the tax returns with numerous false deductions and that his actions were willful.
*638 2. Materiality
Goosby's second contention involves the requirement that the return be "fraudulent or false as to a material matter." Sassak,
Goosby acknowledges that the government presented evidence of materiality at the sentencing hearing, but he argues there was no such proof at trial. However, the evidence at trial established that most of the taxpayers had been audited or filed amended returns, and they paid or owed additional money to the IRS as a result of the false statements. Further, some of the false deductions were so large or inflated, e.g., the approximately $162,000 of gambling losses, that they were obviously material. Therefore, sufficient evidence was presented at trial to prove that the tax returns contained materially false statements.
B. Evidentiary Ruling on Gibeault's Testimony
Goosby filed a pre-trial motion in limine that sought to prohibit the testimony of Investigative Analyst Gibeault. The district court allowed Gibeault's testimony. Goosby argues that the testimony was inadmissible hearsay and that it was in violation of the Sixth Amendment Confrontation Clause, FRE 404(b), and FRE 403. We review the evidentiary rulings of the district court for abuse of discretion. United States v. Lloyd,
We have allowed similar background testimony in other contexts. In United States v. Aguwa, DEA agents were permitted to testify about information they received from an informant, which precipitated a controlled purchase of heroin from the defendant.
Goosby's final evidentiary argument is that Gibeault's testimony violates FRE 403 because its prejudicial effect outweighs its probative value. The only statement by Gibeault that approaches having an unduly prejudicial effect is that he was able to find fifteen returns with a suspicious ratio "very quickly." However, that statement was not before the district court when it ruled on the motion in limine and cannot be considered in determining whether the district court abused its discretion in denying the motion.[1]
*639 C. Jury Instruction on IRS Publications
At trial, IRS Agent Janet Cunningham testified about how a taxpayer can properly claim the deductions seen repeatedly on the returns involved in the indictment. The government also introduced various IRS publications into evidence. During Cunningham's testimony, the court gave a limiting instruction to make it clear that a violation of IRS rules or regulations "is insufficient to establish criminal conduct." At the conclusion of the trial, Goosby requested the following jury instruction regarding the evidence on IRS rules, regulations, and publications:
The violations by the defendant, Gregory D. Goosby, of the rules, regulations, or directives set out in the publications of the Internal Revenue Service are not evidence or proof that the defendant committed the criminal acts alleged in the indictment. The defendant is not on trial for any acts or crimes not alleged in the indictment.
However, the district court agreed with the government that the IRS publications could be considered as "some evidence" that the defendant violated § 7206. The court ultimately gave an instruction similar to the one requested by Goosby, except it included the following sentence: "You may consider them in deciding whether or not the crimes were committed, but violation of the IRS rules and regulations alone is insufficient." (emphasis added).
Goosby asserts that the instruction given by the district court was an incorrect statement of the law. Because Goosby did not object to the instruction, we review the refusal to give his requested instruction for plain error. United States v. Blood,
D. Sentencing
We review the district court's sentencing decision for reasonableness. United States v. Liou,
Goosby contends that it was improper to calculate the tax loss based on Agent McElroy's interviews with taxpayers who were not cross-examined and whose reliability was not investigated. However, we have previously upheld a calculation of tax loss based on IRS interviews with taxpayers. See United States v. Redmond,
Finally, Goosby argues that the sentence imposed is substantively unreasonable under 18 U.S.C. § 3553(a). Because of his stable home life, prior military service, and lack of a criminal record, Goosby contends that he should have been sentenced to a term of probation. However, the district court's imposition of a 46-month term of imprisonment is within the properly calculated Guidelines range of 41 to 51 months. This court has applied a "`rebuttable presumption of reasonableness' to sentences falling within the applicable Guidelines range." Liou,
AFFIRMED.
NOTES
Notes
[1] Goosby did not raise or renew his FRE 403 objection when Gibeault testified at trial regarding how quickly he found the sample of fifteen suspicious returns.