United States Sixth Circuit

Defendant's conviction and sentence for evading corporate income tax in violation of 26 U.S.C. section 2701 and for conspiring to defraud the United States in violation of 18 U.S.C. 371 is affirmed in part, vacated in part and remanded where: 1) defendant cannot demonstrate that the government violated his Sixth Amendment rights as he cannot meet either the burden of demonstrating that the government acted in bad faith or the burden of demonstrating that a witness's testimony would have been material and favorable; 2) district court did not err in finding that co-defendant's statements to his tax return preparer were admissible at trial under Fed. R. Evid. 801(d)(2)(E) as the statements of a co-conspirator; 3) district court did not err in denying defendant's motions for a judgment of acquittal and for a new trial; 4) while the district court erred in appointing a criminal investigator to interpret for the tax return preparer, the district court did not commit plain error in doing so; 5) district court did commit plain error in issuing its instructions as to the charge of conspiring to defraud the United States, as the district court did not omit the willfulness element of section 371 conspiracy when it instructed the jury; 6) district court did not err in issuing a statute of limitations instructions as to the charge for evading corporate income tax; 7) defendant could appropriately be charged under section 371's "defraud" clause, and thus, the charge of conspiring to defraud the United States does not fail to allege an offense pursuant to 18 U.S.C. section 317; 8) defendant's sentence is vacated and remanded for resentencing as the district court committed procedural error by miscalculating defendant's sentence; and 9) on remand, the district court will have the opportunity to address defendant's arguments concerning the tax-loss calculation and to explain the basis of any decision it makes in response to those arguments.

Appellate Information

• Argued 06/15/2010
• Decided 09/15/2010
• Published 09/15/2010

Judges

• McKEAGUE

Court

• United States Sixth Circuit

Counsel

• For Appellant:
  
• Richard L. Stoper, Jr., James V. Moroney, Jr.