Escolar Documentos
Profissional Documentos
Cultura Documentos
Before
Howard, Selya and Stahl,
Circuit Judges.
January 7, 2014
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Franklin famously wrote that "in this world nothing can be said to
be certain, except death and taxes."
Apparently unwilling to
government
alleges).
jury
validated
the
government's
OVERVIEW
This case began when a federal grand jury, sitting in the
The
Following
17-day
trial,
jury
convicted
the
We limn its
mechanics.
Employers are required to withhold Social Security,
Medicare, and federal income taxes from their employees' paychecks
and to remit those payroll taxes to the IRS, along with matching
contributions for Social Security and Medicare.
See 26 U.S.C.
3402. These remittances, and the forms that accompany them, have
a dual purpose: they generate revenue for the Treasury and supply
information about the tax liabilities of employers and employees.
Notably, these withholding requirements generally apply only with
respect to employees, not with respect to independent contractors.
It is trite but true that where there are taxes, there
are individuals who seek to evade them.
(and the jury found) that the defendants and others set up and
operated a series of entities to facilitate this kind of fraud.
One of these entities was Contract America a company
that Adams ran. Instead of paying its employees directly, a client
firm would funnel money to Contract America, which then paid the
client's employees (or those of them who agreed to participate in
the fraud) under the table.
client firm and the participating employees were able to hide from
the IRS.
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to
dance.
The
government
alleges
that
the
defendants
commingled their own funds and the funds of many clients in nominee
bank accounts. The purpose of this commingling was to confound the
IRS about the source of the funds.
The defendants executed the warehouse banking scheme
through a company called Your Virtual Office (YVO), its successor
Office Services, and related entities.
that
the
defendants
controlled.
On
request,
the
flow of funds.
Even after the defendants closed their warehouse banking
operation, they urged a coconspirator (Gail Thorick) to continue
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the business.
Management.
As a capstone to the indictment, the government charged
the defendants with endeavoring to impede the IRS by concealing
their
ill-gotten
government's
gains.
contention
The
that
nub
the
of
these
charges
defendants
is
operated
the
their
ANALYSIS
On
appeal,
the
defendants
argue
that
there
was
review
sufficiency de novo."
preserved
objections
to
evidentiary
We
Count 1
United States
But
See United
States v. Muoz-Franco, 487 F.3d 25, 45-46 (1st Cir. 2007). Nor
must it prove its case by direct evidence.
A combination of direct
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suffice.
1996).
The defendants concentrate their attack on the evidence
of agreement and unlawful purpose.
they did not operate Contract America; that they had no agreement
with Adams to achieve Contract America's unlawful ends; and that
the companies with which they were actively involved appropriately
remitted payroll taxes.
The record contains several pieces of evidence that blunt
the force of these assertions.
America's bank account and gave Adams's then wife Marie Jones (an
unindicted coconspirator) a stamp bearing her (Floyd's) facsimile
signature to use on outgoing Contract America checks.
Adams ran the day-to-day operations of Contract America
(for a time, alongside Jones).
Jones
testified that Talent Management was "designed to work hand-inhand" with a firm called American Contracting Services (ACS), which
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Dion had helped to operate and which provided the same battery of
services as Contract America.
The
record
includes
evidence
that
although
Talent
charged,
paid
to
them
through
proceeds
may
be
their
consulting
firm
Receipt of a share of a
probative
of
the
recipient's
300 F.3d 286, 293 (2d Cir. 2002); see also United States v.
Pressler, 256 F.3d 144, 153 (3d Cir. 2001); United States v. Dadi,
235 F.3d 945, 950 (5th Cir. 2000).
distinction
without
difference.
Many
of
the
relevant
foregoing
evidence,
formidable
in
itself,
is
years.
His
brother
Kenneth
Alcock
(similarly
charged)
The defendants
Some
record
includes
additional
evidence
of
the
See United States v. Friedman, 300 F.3d 111, 126 (2d Cir.
United States v.
jury
to
conclude
that
the
defendants
knowingly
and
But
See United
States
Cir.
v.
Laboy-Delgado,
84
F.3d
22,
26-27
(1st
1996)
Count 2
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For
Weighing
this
intent.
solicitation
of
tax-defiers
probative
of
unlawful
the
defendants
used
BMS
to
create
sham
trusts
and
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Dion offered to
reasonable inference.
To begin, the defendants' denial of any relationship with
Calico is nothing but empty rhetoric.
that Floyd was hip-deep in the operations of that entity: Floyd was
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a trustee of Office Services; she was the person who, with Thorick,
opened a bank account for Office Services's Rhode Island branch;
she was a signatory of that account; she was the one whose
signature stamp was used on outgoing checks for the branch; and she
was imbued with authority over at least one other Office Services
nominee account.
adequate
to
convict
both
Dion
and
Floyd
of
knowing
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defendants'
insufficiency
challenges
to
their
any proof that they earned enough to pay taxes during the relevant
time frame, or that they filed false tax returns, or that they were
audited by the IRS.
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relies
corporations."
"solely
on
the
structure
of
bank
accounts
and
government's proof.
Payments
were made from the warehouse accounts to both defendants, and cash
was withdrawn.
stream, and they commingled that income with clients' funds in what
the jury supportably could have concluded was a ploy to frustrate
IRS detection.
Suppression.
their genesis in the Fourth Amendment, see U.S. Const. amend. IV,
which demands that search warrants issue only upon a showing of
probable cause.
See
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legal
rulings
de
novo."
United
States
v.
Garcia-
Hernandez, 659 F.3d 108, 111 (1st Cir. 2011) (internal quotation
marks omitted), cert. denied, 132 S. Ct. 1873 (2012); accord United
States v. Fagan, 577 F.3d 10, 12 (1st Cir. 2009).
highly deferential.
This review is
Dion,
doing
identification
business
cards.
The
as
PT
bogus
Resource
cards
Center,
included
of
phony
replicas
of
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Her affidavit
described
the
activities
of
PT
Resource
Center;
catalogued
this
venue,
the
defendants
make
two-pronged
Second,
they argue that the court erred in relying on Dion's 1999 affidavit
to connect the crime to the location because that affidavit was
stale.
The first argument collapses of its own weight.
It is
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were
victims
defrauded
into
thinking
that
the
The
supporting
search
warrant
must
contain
timely
Id.
Courts
sometimes have upheld probable cause determinations based on yearsold information. See, e.g., United States v. McElroy, 587 F.3d 73,
77-78 (1st Cir. 2009); United States v. Morales-Aldahondo, 524 F.3d
115, 119 (1st Cir. 2008); Schaefer, 87 F.3d at 568.
Everything
depends on context.
The need to erect a contextual framework requires a
reviewing court to look to a wide variety of factors.
these
factors
include
such
things
as
"the
Typically,
nature
and
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Schaefer, 87 F.3d
Id.
As a result, the
stale facts can be revivified and made relevant for search warrant
purposes by more recent confirmation. See McElroy, 587 F.3d at 7778 & n.5; Schaefer, 87 F.3d at 568.
-22-
suppression.
records.
The
warrant
primarily
sought
business
(6th Cir. 2006); United States v. Hershenow, 680 F.2d 847, 853-54
(1st Cir. 1982).
That ends this aspect of the matter.
The information
before the magistrate judge was more than enough to tie Dion to 44
Depot St. and to support a reasonable belief that evidence of a
crime might be found there.
2.
defendants
gleaned
in
and
Dion's
those
father.5
interviews
and
Based
on
the
plain-sight
A search of the
home ensued.
In challenging this search, the defendants do nothing
more than repackage and reassert their objections to the earlier
search of 44 Depot St. These objections, in their repackaged form,
are no more convincing.
3.
The
2004
Home
Search.
On
March
19,
2004,
participation
in
[the]
investigation
[of
the
defendants],
They
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States v. Hicks, 575 F.3d 130, 137 (1st Cir. 2009); United States
v. Ribeiro, 397 F.3d 43, 50-51 (1st Cir. 2005); United States v.
Jordan, 999 F.2d 11, 14 (1st Cir. 1993); United States v. Aguirre,
839 F.2d 854, 858 (1st Cir. 1988). Here, moreover, the notion that
the affidavit contained no evidence of illegality beyond Agent
Toy's experience-based conclusions is flatly contradicted by the
affidavit's contents.
A few examples
Voluminous
information
defendants'
establishment
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attested
of
to
warehouse
the
and
of
which,
when
viewed
in
context,
could
See United
States v. Falon, 959 F.2d 1143, 1147 (1st Cir. 1992) (observing
that
courts
commonsense
"interpret
and
affidavits
realistic
for
fashion"
search
(internal
warrants
quotation
in
marks
omitted)).
The defendants next assail the use of certain documents
to
support
the
finding
of
probable
cause.
They
argue
that
This
argument is hopeless: the 2003 home search was entirely within the
pale, see supra Part II(B)(2), a fact that renders the defendants'
redundant efforts to impugn the lawfulness of that search a waste
of time.
The defendants next try to discredit the probative value
of documents discovered in their trash.
papers depict only legal transactions.
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Fairly read,
Severance.
The
should
be
tried
together.
See
in
conspiracy
cases,
in
which
United
States
v.
severance
of
ruling
granting
discretion.
or
denying
motion
to
sever
for
abuse
of
Cir. 1990).
The defendants' claim of error has two subsets.
They
start with the plaint that Adams's defense was both antagonistic to
and irreconcilable with their defenses.
We do not agree.
that
he
had
no
legal
obligation
to
pay
income
taxes
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See, e.g.,
may
have
been
uncomfortable
with
Adams's
frank
incompatible.
Accordingly,
severance
was
not
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These
assertions
contain
more
cry
than
wool.
defendants
try
to
marry
their
claim
of
unfair
But
to
organization.
bind
The
the
most
defendants
obvious
to
example
the
of
Save-a-Patriot
this
independent
be
sure,
the
defendants
might
well
have
been
See
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aught
that
appears,
the
remainder
of
the
evidence,
if
spillover from evidence that might not have been admissible against
the defendants in a separate trial, the district court took
effective measures to palliate spillover prejudice.
Where, as
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In
the
Federal
Register
Act,
Congress
decreed
that
This
novo.
defendants
rely,
44
U.S.C.
1505(a)(1),
applies
to
The law is
See United
States v. Walls, 546 F.3d 728, 740 (6th Cir. 2008); United States
v. Schiefen, 139 F.3d 638, 639 (8th Cir. 1998) (per curiam).
Congress's enactment of a criminal statute and the statute's
subsequent publication in the United States Code, without more,
puts prospective defendants on fair notice.7
at 199; Roberts v. Maine, 48 F.3d 1287, 1300 (1st Cir. 1995) (Cyr,
J., concurring).
This
477 F.2d 217, 222 (10th Cir. 1973). It requires the publication of
regulations, not their promulgation.
See,
See United
States v. Dawes, 161 F. App'x 742, 745 (10th Cir. 2005); Watts v.
IRS, 925 F. Supp. 271, 277 (D.N.J. 1996).
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Sentencing.
It
disparity.
We review a district court's bottom-line sentencing
determination for abuse of discretion.
Within this
The first
Id.
frames
his
claim
as
complaint
about
the
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his
complaint
is
that
he
was
similarly
situated
to
his
sentencing
court
to
consider
"the
need
to
avoid
18 U.S.C.
3553(a)(6).
Dion's premise is faulty in two salient respects. First,
Dion
focuses
on
the
wrong
universe.
In
enacting
section
among
defendants
nationally
rather
than
with
In this vein, it
(directing
four-level
enhancement
for
See USSG
organizer
or
leader). Floyd and Adams performed lesser roles, see id. 3B1.1(b)
(directing
nothing
in
lower
the
enhancement
record
for
indicates
manager
that
or
any
supervisor),
of
the
and
remaining
-35-
responsibility.
Such
distinctions
can
justify
differential treatment at sentencing. See United States v. DvilaGonzlez, 595 F.3d 42, 50 (1st Cir. 2010).
Stripped of flawed comparisons, Dion's claim that his
sentence is substantively unreasonable is a pipe dream.
The
as
in
this
case,
district
court
essays
range,
defendant's
claim
of
substantive
Williams, 630 F.3d 44, 52 (1st Cir. 2010); United States v. Glover,
558 F.3d 71, 82-83 (1st Cir. 2009). Dion's claim falls within this
generality, not within the long-odds exception to it.
no
hint
of
an
abuse
of
discretion
disposition.
-36-
in
the
We discern
district
court's
III.
CONCLUSION
We need go no further. For the reasons elucidated above,
Affirmed.
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