UNITED STATES оf America, Plaintiff-Appellee, v. Celina V. LORD, Defendant-Appellant.
No. 09-4924.
United States Court of Appeals, Fourth Circuit.
Argued: Oct. 27, 2010. Decided: Dec. 13, 2010.
404 Fed. Appx. 773
Finally, Green contends that the district court erred in denying his
Here, the evidence that formed thе basis of Green‘s motion for a new trial—the cellular telephone records of one of Green‘s co-conspirators—was not newly discovered, as it was available to Green prior to and during trial. Moreover, because Green‘s conviction was supported by evidence other than the testimony of this co-conspirator, we сonclude that this is not one of the “exceptional rare case[s]” where a new trial is warranted on the basis of impeachment evidence. See United States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1993) (internal quotation marks omitted).
We therefore affirm the district court‘s judgments. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
Before MOTZ and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished opinion. Judge KEENAN wrote the opinion, in which Judge MOTZ and Senior Judge HAMILTON joined.
Unpublished opinions are not binding precedent in this circuit.
KEENAN, Circuit Judge:
Celina Lord appeals her convictions by a jury on six counts of willfully failing to make payroll tax payments for her employer, ASSC, Inс. (ASSC), in violation of
Lord contends that the district court erred: 1) in purportedly permitting an Internаl Revenue Service (IRS) revenue officer to testify about Lord‘s state of mind; 2) in providing the jury a particular definition of negligence; and 3) in denying Lord‘s motion under
I.
The record before us shows that certain types of employers, including ASSC, are required to withhold employment taxes from their employees’ wages. See Erwin v. United States, 591 F.3d 313, 319 (4th Cir. 2010). The employer holds the money in “trust for the United States” until making a federal tax payment in the amount of the withheld funds.
If the IRS is unable to collect “trust fund taxes” from an employer, as occurred in this case, the IRS may impose liability on the employer‘s officers or employees when two requirements are met. First, the officer or employee must have had a duty to “collect, account fоr, and pay over” employment taxes for the employer. See
In the present case, ASSC failed to pay over employment taxes to the federal government from the fourth quarter of 2001 through the second quarter of 2004. Celina Lord was the chief financial officer and
II.
The evidence at trial showed that Jannette Green, a revenue officer for the IRS, was assigned responsibility for collecting delinquent employment taxes owed by ASSC. As part of her duties, Green conducted interviews with Lord and Linda Smith, the president of ASSC, to determine whether they were personally liable for trust fund rеcovery penalties under
Green first testified regarding her conversations with Smith. Green stated that she explained to Smith the IRS‘s procedures for determining civil liability to pay trust fund recovery penalties. Green informed Smith “that [as part of its collection efforts, the IRS makes] a determination based on willfulness and responsibility to determine who was actually responsible for having turned over [withheld employment taxes] to the government and failed to do so.”
Lord‘s counsel raised an objection, asserting that any statements by Green regarding which individuals at ASSC were responsible for payment of employment taxes would improperly invade thе province of the jury to decide an element of the offense charged. Counsel for the government responded, suggesting that the district court instruct the jury that Green was only testifying about her discussions with Smith regarding her liability for civil penalties, and not about conclusions Green may have drawn about Lord‘s responsibility under the criminal statute. Lord‘s counsel accepted the government‘s proposal, stating, “All right.”
After a brief recess, the district court instructed the jury, “You had some testimony from Ms. Green on responsible party under her theory. The question of who is the responsible party is a question of law, and it‘s not for Ms. Green to make that decision.” Lord‘s counsel did not object to this instruction.
Counsel for the government resumed his direct examination of Green. In response to a question, Green testified, “I would have told [Smith] that based on the interview I conducted ... that I had deemed that [Smith] was both willful and responsible for ... having withheld money from employees’ paychecks for taxes and Social Security and not having paid it over to the government.”
Green gave similar testimony regarding her conversations with Lord, except that Green did not use the word “willful.” Lord objected to the government‘s questions eliciting this testimony as leading, and to Green‘s testimony as irrelevant. The district court overruled Lord‘s objections. Green testified, “I told [Lord] how we determined who was responsible. And I told her that based on the interview, that I would be holding her responsible for the trust fund [recovery] penalties.”
A.
We ordinarily review a district court‘s evidentiary rulings for abuse of discretion. See United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010). However, when an evidentiary issue is raised for the first time on appeal, our consideration is limited to a plain error review. United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010);
Lord maintains for the first time on appeal that Green testified as an expert witness based on her specialized training as an IRS revenue officer, including her knowledge of the relevant provisions of the Internal Revenue Code. Lord argues that Green improperly rendered opinion testimony regarding Lord‘s mental stаte in violation of
In addressing this argument, we initially observe that the government did not attempt to qualify Green as an expert witness, and that Lord did not raise an objection in the district court challenging Green‘s statements as being inadmissible expert testimony. Thus, we review the district court‘s admission of Green‘s testimony under the plain error standard. See Lynn, 592 F.3d at 577.
The jury was charged, pursuant to
Even if we assume, without deciding, that Green effeсtively rendered expert testimony, that testimony did not violate
We also note that after the close of all the evidence, the district court carefully instructed the jury by defining the terms contained in
B.
We turn to consider Lord‘s challenge to the district court‘s supplemental jury instruction defining negligence. In its initial charging instructions, the district court defined the term “willful,” stating, “[t]o act willfully means to act voluntarily and deliberately and intending to violate a known legal duty.” The court then explained that “[n]egligent conduct is not sufficient to constitute willfulness.”
During its deliberations, the jury аsked the district court to define “negligent conduct.” The district court informed counsel that the court would respond that “negligence is a failure to exercise ordinary, reasonable care.”
Lord objected to this definition, asserting that the district court either should decline to define “negligent conduct,” or should include in its definition the phrase “[care that a] reasonable person would exercise.” The district court proceeded to instruct the jury in accord with the court‘s initial proposal.
We review the district court‘s decision to give this jury instruction for abuse of discretion. See United States v. Abbas, 74 F.3d 506, 513 (4th Cir. 1996). Thus, we will not reverse Lord‘s convictions on this basis unless the instructions, taken together, did not adequately state the cоntrolling legal principles. United States v. Jeffers, 570 F.3d 557, 566 (4th Cir. 2009).
The parties agree that the determination of willfulness, for purposes of
We find no merit in Lord‘s argument. At the outset, we note that Lord expressly invited the district court to include in its definition of “negligent conduct” language regarding a “reasonable person.” See United States v. Herrera, 23 F.3d 74, 76 (4th Cir. 1994). Moreover, the district court correctly defined both “willful” and “negligent” conduct. As stated above, the district court аlso expressly distinguished negligence from willfulness, and instructed the jury that negligent acts cannot form the basis for a violation of
C.
We next address Lord‘s argument that the district court erred in denying her motion under
When a
Lord contends first that the government failed to prove that she “had a duty to collect, truthfully account for, and pay over” employment taxes on behalf of ASSC. We disagree with Lord‘s argument.
The evidentiary record contains substantial evidence showing that Lord was a “responsible person” required to pay over employment taxes on behalf of ASSC. Lord conceded during her testimony that she exercised authority over the finances of ASSC. She not only was authorized to sign employment tаx returns, but also had the ability to transfer the sums withheld for taxes to the accounting service used by ASSC.
Other ASSC employees testified that Lord controlled the day-to-day operations and finances of ASSC throughout the time periods at issue. Smith testified that Lord had signature authority over the bank account used by ASSC to pay all bills, including payroll taxes. Smith further stated that Lord hаd permission to file ASSC‘s tax returns and to pay over the employment taxes. Taken together, this evidence was sufficient to permit the jury to find beyond a reasonable doubt that Lord was responsible for withholding and paying over employment taxes on behalf of ASSC.
Lord argues, nevertheless, that the government failed to prove that her failure to pеrform this duty was willful. This argument, however, is refuted directly by the record. The jury heard evidence that Lord was aware of the importance of filing tax returns. Prior to accepting the position of chief financial officer for ASSC, Lord had been an accountant for almost twenty years. In at least two of her previous jobs, Lord was involved with, or was in charge оf, ensuring that her employer‘s payroll taxes were properly filed and paid. Further, Lord conceded in her trial testimony that one of her “higher priorities” at ASSC was to “file and to pay all outstanding taxes.”
Lord repeatedly testified that she was too busy with other responsibilities, and had to satisfy other debts and pay employee wages, before shе made ASSC‘s employment tax payments. Such acts, of paying wages and of satisfying debts to creditors in lieu of remitting employment taxes to the IRS, constitute circumstantial evidence of a voluntary and deliberate violation of
Based on this evidence, and viewing the government‘s proof as a whole, we conclude that substantial evidence in the record supports the jury‘s conclusion that Lord willfully violated
III.
We conclude, however, that there was errоr in the amount of restitution ordered by the district court. Restitution is allowed only “for the loss[es] caused by the specific conduct that is the basis of the offense of conviction.” Hughey v. United States, 495 U.S. 411, 413, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990). Conduct that is relevant to the government‘s proof but does not form a basis for the conviction may not be considered in ordering restitution. United States v. Newsome, 322 F.3d 328, 341 (4th Cir. 2003).
The parties agree that the proper amount of restitution attributable to the conduct underlying Lord‘s conviction is
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
KEENAN
UNITED STATES CIRCUIT JUDGE