NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 14-1293
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                                    FRIDAY JAMES,

                                              Appellant
                                   ________________

                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                     (D.C. Criminal Action No. 2-12-cr-00106-001)
                      District Judge: Honorable Norma L. Shapiro
                                   ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 13, 2015

                Before: AMBRO, FUENTES, and ROTH, Circuit Judges

                            (Opinion filed: October 20, 2015)

                                   ________________

                                       OPINION*
                                   ________________

AMBRO, Circuit Judge




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Friday O. James appeals his conviction of and sentence for 26 counts of aiding in

the preparation of materially false tax returns or related documents. 26 U.S.C. § 7206(2).

We affirm.

       I.     Facts

       James ran Frika Tax Services, a tax preparation business in Philadelphia. Before

opening his own business, he had worked for H&R Block and Liberty Tax Services,

where he had been a tax preparer and had received training in assisting others with their

federal income taxes. In 2008 and 2009, he signed about 2,000 tax returns, 26 of which,

a jury found, he had prepared or assisted in preparing with materially false statements. In

short, James claimed on behalf of his clients excessive deductions for meals and business

travel and he claimed the First-Time Homebuyer Credit—a valuable tax benefit available

to, as the name implies, those who have bought a home for the first time within a certain

time frame—for a handful of clients who did not qualify for it.

       II.    Discussion

       James argues that he misunderstood the nature of the First-Time Homebuyer

Credit and thus did not wilfully violate the tax laws; that several of his clients were

entitled to deduct purported business expenses that James claimed on their behalf; that

the Government failed to prove that James himself prepared the returns that contained

false statements; that the Court erred in its jury charge by commenting on the argument

of James’s counsel and by referring to uncharged conduct; and that he must be

resentenced. James makes generalized attacks against the Government’s case; he does



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not explain one-by-one why he believes each conviction must fall, and we take the same

approach.

       A.     First-Time Homebuyer Credit

       Thirteen of the counts of conviction include a false Form 5405, the document by

which a taxpayer claims the Homebuyer Credit. James argues on appeal (as he did at

trial) that he believed anyone who had purchased a home before the deadline for the

relevant tax year “or [was] considering buying a home” could claim the credit. App. Br.

12–13. In James’s view, if a recipient of the credit failed to buy a home, he could repay

the credit (with thanks to the Government for the interest-free loan). In fact, only those

who have bought or contracted to buy a first home are eligible. 26 U.S.C § 36(h)(1)–(2).

As ignorance of the law is a defense to criminal tax violations, Cheek v. United States,

, 199–200 (1991), James argues that his misunderstanding of the Internal

Revenue Code precludes a conviction here.

       Although it is theoretically possible that James misunderstood the operation of the

Homebuyer Credit, other inferences from the evidence are plausible (and that carries the

day, as on appeal of a conviction we review the evidence in the light most favorable to

the Government). Form 5405, which was attached to the tax returns that claimed the

credit, requires the taxpayer (or preparer) to list the “[a]ddress of home qualifying for the

credit” and the “[d]ate acquired” and states in the instructions that people may claim the

credit only if they “purchased [their] main home located in the United States after April

8, 2008, and before December 1, 2009.” IRS Form 5405, 1 (Rev. Feb. 2009). One

witness testified that James told them they could claim the credit simply by entering any

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address in the field for the qualifying home, see Supp. App. 201:2–22 (testimony of

Barry Thompson) (“[H]e told me to make up an address.”), another that the date listed

was false (because she never acquired the house), 

(Rebecca Varney).

Others testified that James claimed the “First-Time Homebuyer Credit” for them despite

their already owning a home. 

(testimony of Jacob McCarthy that he had

owned a home since 2000 but that James told him to claim the credit anyway); 

(testimony of Edward Jones that he already owned a home and did not

purchase a home at the address listed on his Form 5405).

       Given James’s years of experience as a tax preparer, which included training from

two widely used national tax preparation companies, a reasonable juror could have

concluded that James would have read and understood the form’s instructions. And, even

without regard to his purported understanding of the credit, the evidence supports the

conclusion that he wilfully entered materially false information, as when he encouraged

Barry Thompson to make up an address and when he entered in a “[d]ate acquired” for

the house Rebecca Varney never bought. James does not argue that he was unaware that

it is a crime to enter false facts into a tax document, and thus his argument that the

Government failed to prove he had the required intent falls short.

              B.     Meals and Travel Expenses

       James’s business expense deductions fare no better. The Internal Revenue Code

allows employees—those who are not self-employed—to take limited deductions for

unreimbursed business expenses, such as transportation between jobs and meals. James

argues that many of his clients paid these expenses with money that was not reimbursed

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and that he prepared their returns to take proper deductions. But the possible existence of

some reimbursable expenses does not override the illegal deductions he took. For

example, Jallah Buku’s tax return claims $10,936 in unreimbursed business expenses,

including thousands claimed for driving and meals; he testified that he had not spent that

amount of money and did not even know it was on his return. Supp. App. 296:5–11. A

reasonable juror could have concluded that James, who prepared the return, made up a

large number to claim a large refund, and thus his argument that he only claimed

allowable business expenses must fail.

              C.     Identity

       James’s contention that the Government failed to prove “identity”—i.e., that it was

James himself who filled out the relevant tax forms—likewise cannot upset his

conviction. For example, Edward Jones testified that a “kid” (Jones could not remember

his name) prepared Jones’s 2008 or 2009 tax return. The kid was an employee of Frika,

and James’s preparer tax identification number (PTIN), a unique set of digits used as an

electronic signature on tax forms, appeared on both of Jones’s returns. The 2008 return

falsely claimed the First-Time Homebuyer Credit and certain business expenses, while

the 2009 return also claimed thousands in unreimbursed business expenses that Jones had

never made. Given the substantial similarities between the tax returns allegedly filled out

by James’s employee and signed using James’s PTIN and those undisputedly prepared by

James himself, a reasonable juror could have concluded at least that James directed the

material falsehoods to be entered into the former set of returns.



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              D.      Constructive Amendment

       James also argues that the Court allowed the jury to convict him for activity not

charged in the indictment. Several witnesses testified about falsehoods on their tax

returns related to claimed deductions for charitable contributions and uniforms; however,

James was charged only with falsifying claims for the First-Time Homebuyer Credit and

deductions for travel and meals. The Court specifically instructed the jury not to consider

possible violations other than the three kinds of activity charged in the indictment. Supp.

App. 686:21–687:5 (“[Y]ou’ve heard testimony about charitable contributions and about

uniforms and shoes, but the charges are with regard to three things . . . .”) (listing

unreimbursed travel and meal expenses and the Homebuyer Credit). James complains

that this limiting instruction prejudiced him, but it in fact did the opposite by clarifying to

the jury what they should consider and directing them that much damaging testimony was

not relevant to the charged offenses.

              E.      Comment on Counsel’s Argument

       Similarly, the Court appropriately instructed the jury on how to understand a

statement of the law made by James’s counsel in closing argument that differed from one

given by the Court in its charge. James’s lawyer argued to the jury that James had

correctly understood the Homebuyer Credit to have been available to those who were

contemplating buying a first home even if they never actually bought one. The District

Court charged the jury that counsel had misstated the law and immediately added, “[B]ut

that’s not the issue.” Supp App. 693:19. The Court then directed the jury’s attention to

the important issue in the case: “[Y]ou have to consider whether [James] misunderstood

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the law and thought that he had the right to claim it for these people or whether he

willfully claimed it to get the large refunds whether or not that was legally permissible.”

       When considering whether a Court’s remarks on argument are appropriate, we

consider “the materiality of the comment, its emphatic or overbearing nature, the efficacy

of any curative instruction, and the prejudicial effect of the comment in light of the jury

instruction as a whole.” United States v. Olgin, 

, 268–69 (3d Cir. 1984).

Here, there is no suggestion that the comment was material, and in fact the Court stated

that any disagreement on the law between counsel and the Court was “not the issue.”

Supp. App. at 693:22. The Court’s instruction was by no means disparaging or

overbearing; it merely explained to the jury the District Judge disagreed with defense

counsel’s view of the law, a necessary clarification as defense counsel’s closing argument

endorsed James’s take on the availability of the Homebuyer Credit. Nor can we discern

any prejudicial effect from this necessary instruction in the middle of a lengthy charge.

James thus fails to persuade us that the Court’s comments require reversal.

              F.       Sentence

       James’s final challenge is that his sentence should be at most six months. He

argues first that there was no tax loss in this case, meaning that his offense level should

have been 6 rather than 24, and second that the District Court indicated a desire to depart

downward from the Guidelines’ range but nevertheless sentenced him to the statutory

maximum. However, as the Government rightly points out, James conceded the amount

of the attempted tax loss at his sentencing ($1.2 million), which led to an offense level of

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24 and a Guidelines range of 51 to 63 months’ imprisonment. Supp. App. 710:18–19.

His second argument fares no better. Although three years is the statutory maximum for

one count of violating 26 U.S.C. § 7206, those sentences may run consecutively to one

another, making the statutory maximum here 78 years for James’s 26 counts of

conviction. James’s 36-month sentence was below the Guidelines’ range and the

statutory maximum, and James raises no persuasive argument that it should be reduced.

                                  *     *       *    *      *

         We have considered James’s remaining arguments and find them unpersuasive.

The conviction and sentence were proper, and we thus affirm the judgment of the District

Court.




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