Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-19-2007

USA v. McKee
Precedential or Non-Precedential: Precedential

Docket No. 05-3297




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Recommended Citation
"USA v. McKee" (2007). 2007 Decisions. Paper 159.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/159


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              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT

                            No. 05-3297

                  UNITED STATES OF AMERICA

                                v.

                         KEVIN MCKEE,

                               Appellant

                            No. 05-3469

                  UNITED STATES OF AMERICA

                                v.

                         INGE DONATO,

                              Appellant

                            No. 05-3357

                  UNITED STATES OF AMERICA

                                v.

                        JOSEPH DONATO,

                              Appellant

      Before: SCIRICA, Chief Judge, McKEE and STAPLETON,
                          Circuit Judges

                 ORDER AMENDING OPINION

IT IS HEREBY ORDERED that the Slip Opinion filed in these cases on


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October 29, 2007, be amended as follows:

      1. On page 4, the sentence “Each defendant makes specific claims
      regarding his/her conviction, and they collectively challenge the jury
      instructions on the conspiracy count, the sufficiency of the evidence,
      several evidentiary rulings, and the sentences that were imposed” should be
      changed to read as follows: “Each defendant makes specific claims
      regarding his/her conviction, and they collectively challenge the jury
      instructions on the affirmative acts of evasion element of the tax evasion
      counts, the sufficiency of the evidence, several evidentiary rulings, and the
      sentences that were imposed.”

      2. On page 10, the sentence “Here, in instructing the jury about conduct
      that could establish the charged conspiracy, the court including failing to
      report information to the Partnership’s account, and falsifying books and
      records” should be changed to read as follows: “Here, in instructing the
      jury about conduct that could establish the charged employment tax
      evasion, the court including failing to report information to the
      Partnership’s account, and falsifying books and records.”

      3. On page 15, delete the portion of the opinion which reads:

      The trial court gave a specific instruction on tax evasion that identified the
      conduct that could satisfy the affirmative act element of the charged
      conspiracy. As will be discussed in greater detail below, the government
      only had to prove one—not all—of the overt acts charged in the indictment.
      United States v. Adamo, 

, 38 (3d Cir. 1976). Nevertheless, the
      Defendants can not be convicted on the basis of an overt act that is included
      in jury instructions, but not charged in the indictment. 

.

      Replace it with the following:

      The trial court gave a specific instruction on tax evasion that identified the
      conduct that could satisfy the affirmative act element of the charged
      employment tax evasion. Nevertheless, the Defendants can not be
      convicted on the basis of an affirmative act that is included in jury
      instructions, but not charged in the indictment. 

.

      4. On page 19, the sentence “The court did not tell the jury to rely only
      upon evidence of the specific overt acts charged in the indictment” should

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         be changed to read as follows: “The court did not tell the jury to rely only
         upon evidence of the specific affirmative acts charged in the indictment.”

         5. On page 26, the sentence “Moreover, the overt acts of Joseph and Inge
         on behalf of the Partnership may be imputed to Kevin McKee for the period
         1997 through 2000” should be changed to read as follows: “Moreover, the
         affirmative acts of Joseph and Inge on behalf of the Partnership may be
         imputed to Kevin McKee for the period 1997 through 2000.”

         6. On page 27, the sentence “Accordingly, the fraudulent filings satisfied
         the overt act of tax evasion for all three Defendants” should be changed to
         read as follows: “Accordingly, the fraudulent filings satisfied the
         affirmative act of tax evasion for all three Defendants.”

         7. On page 42, delete the portion of the opinion which reads:

         In order to prove a conspiracy to defraud the United States in violation of
         18 U.S.C. 371 (Count 1), the evidence must establish the following
         elements beyond a reasonable doubt: (1) an agreement to defraud the United
         States, (2) the defendant’s knowing and voluntary participation in the
         conspiracy, and (3) each conspirator’s commission of at least one overt act
         in furtherance of the conspiracy. See United States v. Rankin, 

,
         113 (3d Cir. 1989).

         Replace it with the following:

         In order to prove a conspiracy to defraud the United States in violation of
         18 U.S.C. 371 (Count 1), the evidence must establish the following
         elements beyond a reasonable doubt: (1) an agreement to defraud the United
         States, (2) an overt act by one of the conspirators in furtherance of that
         objective, and (3) any conspirator’s commission of at least one overt act in
         furtherance of the conspiracy. See United States v. Rankin, 

,
         113 (3d Cir. 1989).

IT IS SO ORDERED.

                                                    By the Court
                                                    /s/ Theodore A. McKee
                                                    Circuit Judge
Dated:          November 19, 2007

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lwc/cc:   Rocco C. Cipparone Jr., Esq.
          Peter Goldberger, Esq.
          Alan Hechtkopf, Esq.
          John Hinton III, Esq.
          George S. Leone, Esq.




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