UNITED STATES of America, Appellee, v. John B. OHLE, III, William E. Bradley, Defendants-Appellants.
Nos. 11-0393-cr(L), 11-0395-cr(CON)
United States Court of Appeals, Second Circuit.
Oct. 20, 2011.
444 F. App‘x 457
Edward S. Zas, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Defendant-Appellant William E. Bradley.
Stanley J. Okula, Jr., Assistant United States Attorney (Katherine Polk Failla, Assistant United States Attorney, Nanette L. Davis, Special Assistant United States Attorney, on the brief), on behalf of Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
PRESENT: ROBERT D. SACK, REENA RAGGI, Circuit Judges, RICHARD K. EATON, Judge.*
*
John B. Ohle, III and William E. Bradley appeal from convictions entered after a jury trial at which both men were found guilty of conspiracy to defraud an agency of the United States, specifically, the Internal Revenue Service, see
Defendants bear a heavy burden in raising sufficiency challenges to their convictions because although our standard of review is de novo, we must view the trial evidence in the light most favorable to the verdict, assuming that the jury resolved all questions of witness credibility and competing inferences in favor of the prosecution. See United States v. Abu-Jihaad, 630 F.3d 102, 134-35 (2d Cir.2010), cert. denied, --- U.S. ---, 131 S.Ct. 3062, 180 L.Ed.2d 892 (2011). Under this “exceedingly deferential” standard of review, United States v. Hassan, 578 F.3d 108, 126 (2d Cir.2008), defendants can secure relief only by showing that no rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt, see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); accord United States v. Abu-Jihaad, 630 F.3d at 135.
a. Conspiracy
Defendants contend that the evidence did not permit a reasonable jury to find that schemes to defraud one of Ohle‘s trust clients, Ecetra Ames, and his employer, Bank One, were part of the charged single overarching conspiracy to defraud the United States. We disagree. The question of whether evidence shows a single conspiracy or multiple independent conspiracies “is a question of fact for a properly instructed jury.” United States v. Berger, 224 F.3d 107, 114 (2d Cir.2000); accord United States v. Chavez, 549 F.3d 119, 125 (2d Cir.2008). Defendants do not contend that the jury was improperly instructed on this point. Having reviewed the record, we conclude that a rational jury could have found that the complex, multi-phase process by which conspirators stole money from the Ames trust, then stole fees from Bank One that would not otherwise have gone to them, and finally avoided paying federal taxes on the monies so obtained constituted a single interdependent scheme to defraud the United States. See United States v. McDermott, 245 F.3d 133, 136-37 (2d Cir.2001); United States v. Sureff, 15 F.3d 225, 230 (2d Cir.1994).1
Defendants further argue that the evidence was insufficient to permit a reasonable jury to find that the charged conspiracy affected a financial institution, as required to afford the government the benefit of the ten-year statute of limitations specified in
b. Tax Evasion
Ohle next argues that the trial evidence was insufficient to permit any rea
Trial evidence showed that Ohle, a tax lawyer and certified accountant, stated to various “1256” shelter participants that the vehicle was structured to limit their actual risk of loss to the amount invested. The jury heard further evidence indicating Ohle‘s knowledge that the investment would generate paper losses in far larger—i.e., multimillion dollar—amounts. It also heard that Ohle nevertheless made false statements to another tax lawyer regarding the nature of the shelter transaction to obtain an opinion letter indicating that his own investment objectives and his claimed tax deduction from these paper losses were lawful. Where the evidence so convincingly demonstrates an intent to defraud the United States of taxes owed, we need not delineate the precise boundaries of the “at risk” or “primarily for profit” theories of evasion pursued by the government, see
c. Venue
Defendants argue that the trial evidence was insufficient to permit a preponderance finding that the charged crimes were properly venued in the Southern District of New York. See United States v. Rommy, 506 F.3d 108, 119 (2d Cir.2007) (discussing preponderance standard for venue). Venue is proper where the defendant intentionally or knowingly caused an act in furtherance of the charged offense to occur, or where the defendant could reasonably foresee that such an act would occur as a result of his own conduct. See United States v. Svoboda, 347 F.3d 471, 483 (2d Cir.2003).
i. Conspiracy
For a conspiracy charge, venue lies in any district in which an overt act in furtherance of the conspiracy was committed by any conspirator. See id. at 482-83. This can include evidence that a conspirator traveled into the district, see United States v. Nathan, 476 F.2d 456, 461-62 (2d Cir.1973), or directed communications into the district, see United States v. Rommy, 506 F.3d at 120, in furtherance of the charged scheme.
Defendants argue that the only relevant acts proved to have occurred in the Southern District of New York predated the charged conspiracy. The argument is grounded in defendants’ contention that acts relating to the Ames trust embezzlement, many of which occurred in the Southern District of New York, could not be viewed as part of the later referral-fee scheme. Having already concluded that a reasonable jury could find all these activities to be part of the single charged conspiracy against the United States, we reject defendants’ argument that overt acts in the Southern District of New York pertaining to the Ames trust do not suffice to satisfy venue on the conspiracy count.
ii. Tax Evasion
A tax evasion charge is properly venued wherever a defendant‘s attempt to evade taxes was begun, continued, or completed. See United States v. Drachenberg, 623 F.3d 122, 125 (2d Cir.2010); cf. Spies v. United States, 317 U.S. 492, 499, 63 S.Ct. 364, 87 L.Ed. 418 (1943) (holding that “any conduct, the likely effect of which would be to mislead or to conceal” can be affirmative act of tax evasion).
As to Count 2, a reasonable jury could find venue in the Southern District of New York based on wire transfers that Ohle directed others to send from the United States to Bermuda and back because they passed through New York correspondent banks.2 The evidence showed that (1) on November 19, 2001, Ohle directed Charles Schwab to wire transfer $7 million from Ames trust accounts in San Francisco to Carpe Diem accounts in Bermuda; (2) on November 27, 2001, Ohle directed Schwab to transfer an additional $347,834.04 from the San Francisco accounts to the Carpe Diem Bermuda accounts; (3) on December 3, 2001, Ohle directed Carpe Diem to transfer $300,000 back to United States accounts; and (4) on December 7, 2001, Ohle directed Carpe Diem to transfer the full $347,834.04 back to United States accounts. A reasonable jury could find that as a sophisticated lawyer and tax accountant, Ohle would have foreseen that these international wire transfers would necessarily pass through New York correspondent banks. See Citibank, N.A. v. Wells Fargo Asia Ltd., 495 U.S. 660, 663, 110 S.Ct. 2034, 109 L.Ed.2d 677 (1990) (“To complete [international] transactions, most banks that participate in the interbank trading market utilize correspondent banks in New York City, with whom they maintain, directly or indirectly, accounts denominated in United States dollars.“).
Further, while the most obvious purpose of these transfers was to swindle the Ames trust undetected, the following evidence supports a reasonable preponderance that all four transfers also served a tax evasion purpose. See Id. at 499. First, regarding the $7 million and $300,000 transfers, Edward Doherty at Carpe Diem testified that Ohle told him that the Ames trust planned to make a single payment to Carpe Diem in Bermuda that would include Ohle‘s $300,000 “commission,” and that Carpe Diem should then wire Ohle‘s “commission” back to the United States. See Trial Tr. at 1009. An IRS agent testified that Carpe Diem wired the $300,000 back not to Ohle but, rather, to an “Invested Interest” account held by one of Ohle‘s associates, Jonathan Freedman. See id. at 1962-63. The IRS agent further testified that Freedman then transferred $250,000 of the $300,000 total to Brown to fund Brown‘s role in the fraudulent referral fee scheme, and only sent the remaining $50,000 on to Ohle personally. See id. From the totality of this evidence, a jury could reach a preponderance finding that Ohle concocted this first sequence of international wire transfers not just to steal and hide his theft from the Ames trust, but also to hide from tax authorities $250,000 of the $300,000 total income that he thereby received.
Second, regarding the two $347,834 transfers, Doherty testified that the first of these transfers was characterized as an “overpayment” on the Ames trust investment. See Trial Tr. at 1010-11. After Carpe Diem received the “overpayment,” Ohle told Carpe Diem that the Ames account in San Francisco had been closed, and that the “overpayment” should thus be
Ohle‘s venue challenge to Count 3 merits little discussion. Trial evidence showed that Ohle directed misleading communications to a lawyer in the Southern District of New York in order to obtain an opinion letter regarding the “1256” shelter that would facilitate his evasion of federal taxes. A jury reasonably could have easily concluded that this conduct was intended to mislead or conceal information about Ohle‘s tax liability and, thus, that the attempted tax evasion charge in Count 3 was also properly venued in the Southern District of New York. See United States v. Gross, 276 F.2d 816, 820 (2d Cir.1960).
2. Bradley‘s Sentencing Challenge
Bradley argues that his sentence is infected by procedural error, specifically, a miscalculation of his Sentencing Guidelines range by (1) the application of a two-level enhancement for abuse of trust, see
3. Forfeiture Challenges
We review defendants’ challenges to the district court‘s forfeiture orders for abuse of discretion. See United States v. Gaskin, 364 F.3d 438, 461-62 (2d Cir.2004).
a. Bradley‘s Forfeiture Challenge
Bradley‘s challenge to the order that he forfeit $255,000 appears to rest on the mistaken premise that he can only be required to forfeit fraud proceeds that he personally kept. To the contrary,
b. Ohle‘s Forfeiture Challenge
Ohle argues that the district court erred in ordering him to forfeit $2,954,344. As
4. New Trial
Finally, Ohle and Bradley assert that the government‘s failure to make disclosures required by Brady v. Maryland, 373 U.S. 83 (1963), compelled the district court to grant them a new trial. See
Defendants can point to only one potentially material document that was not contained in the original electronic database turned over by the government. For the reasons stated by the district court, defendants cannot show a reasonable probability that timely disclosure of this document would have resulted in a different outcome at trial. See id. at *5-6; United States v. Persico, 645 F.3d 85, 111 (2d Cir.2011); United States v. Brunshtein, 344 F.3d at 101. Accordingly, there is no need to remand, as defendants urge, for an evidentiary hearing on their Brady claims. Cf. United States v. Erb, 543 F.2d 438, 443 (2d Cir.1976) (rejecting argument that claim of evidence suppression required evidentiary hearing).
We have considered defendants’ remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgments of conviction are AFFIRMED.