Filed: Oct. 29, 2008
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4956 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. UCHE KAMALU, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (8:05-cr-00210-AW) Argued: September 26, 2008 Decided: October 29, 2008 Before KING, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: John O. Iweanoge, II, Washington, D
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4956 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. UCHE KAMALU, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (8:05-cr-00210-AW) Argued: September 26, 2008 Decided: October 29, 2008 Before KING, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: John O. Iweanoge, II, Washington, D...
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4956
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
UCHE KAMALU,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:05-cr-00210-AW)
Argued: September 26, 2008 Decided: October 29, 2008
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: John O. Iweanoge, II, Washington, D.C., for Appellant.
Michael R. Pauzé, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, Baltimore, Maryland, Stuart A. Berman,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Uche Kamalu appeals his convictions on one count of
violating 26 U.S.C. § 7212(a) (corruptly obstructing
administration of the Internal Revenue Code), and ten counts of
violating 26 U.S.C. § 7206(2) (willful preparation of false
income tax returns). Because the first count of the indictment
was not duplicitous or prejudicial to the defendant, the
evidence was sufficient to support his convictions on the tenth
and eleventh counts of the indictment, he was not entitled to a
new trial, and his challenge to the sentence of imprisonment is
moot, we affirm the judgment of the district court.
I.
Kamalu, a certified public accountant, prepared federal
income tax returns for his clients. In an eleven-count
indictment, Kamalu was accused of causing “numerous client
taxpayers to falsely report itemized deductions to include
deductions for mileage expenses,” thereby understating their
actual income tax liability. Count One of the indictment,
charging a violation of 26 U.S.C. § 7212(a), alleged that Kamalu
“filed hundreds of false federal income tax returns . . . on
behalf of numerous client taxpayers he represented for the tax
years 1999 through 2002,” and thereby “corruptly endeavored to
obstruct and impede the due administration of the internal
2
revenue laws . . . by engaging in a continuous scheme to
obstruct and impede the IRS from determining the correct amount
of deductions to which his clients were entitled.” Counts Two
through Eleven charged that Kamalu “willfully aid[ed] and
assist[ed] in the preparation and presentation . . . of . . . an
Internal Revenue Service Form 1040 and accompanying schedules .
. . which was fraudulent and false as to a material matter,” in
violation of 26 U.S.C. § 7206(2). The indictment included a
chart associating each of the § 7206(2) counts with an
individual or joint federal income tax return and indicating
that Kamalu had falsely prepared and included in each return a
Schedule A and Form 2106 claiming the false mileage deductions.
At trial, the Government called Mary Somma from the
Criminal Investigation Branch of the Internal Revenue Service as
an expert witness. During cross-examination by Kamalu, Somma
testified that, like a taxpayer, a tax preparer signs a tax
return under penalty of perjury. After the trial, Somma’s IRS
supervisor challenged her on that point and alleged that her
testimony had been intentionally false. The purported exchange
between Somma and her supervisor was reported to the United
States Attorney, who disclosed the information to Kamalu.
At the conclusion of the Government’s case, Kamalu filed a
motion for acquittal under Rule 29 of the Federal Rules of
Criminal Procedure. Kamalu argued that Count One was
3
duplicitous because the Government should have been required to
charge each alleged violation of § 7212(a) individually. Kamalu
separately contended that the evidence was insufficient to
support his convictions under Counts Ten and Eleven because the
indictment specified a false Schedule A and Form 2106 for the
taxpayer associated with those counts but that the Government
did not prove those particular forms were ever filed. The
district court denied Kamalu’s motion.
A jury convicted Kamalu on all eleven counts of the
indictment. Following the Government’s disclosure pertaining to
Somma, Kamalu filed a motion for a new trial under Rule 33 and
argued the testimony was perjurious. The district court denied
Kamalu’s motion.
The sentencing guidelines applicable to Kamalu’s
convictions provided a base offense level of 14 for a tax loss
between $30,000 and $80,000 and a base offense level of 16 where
the tax loss is between $80,000 and $200,000. United States
Sentencing Guidelines Manual § 2T4.1 (2007). In preparation for
sentencing, the Government submitted a memorandum to the
Probation Officer purporting to establish that the total tax
loss attributable to Kamalu’s conduct was $157,072. The
Government attributed $53,052 of the tax loss to the taxpayers
identified in Counts Two through Eleven of the indictment. The
Government contended the other $104,020 of alleged tax loss
4
should be attributed to Kamalu from unidentified clients on the
basis of adjustments to their tax returns following
correspondence audits by the IRS. Kamalu objected to the
inclusion of the $104,020 in the tax loss calculation.
The district court accepted the Government’s tax loss
calculation of $157,072 as attributable to Kamalu and ultimately
determined a sentencing guidelines offense level based on that
loss with a sentencing range of 27 to 33 months. The court
sentenced Kamalu to 27-months imprisonment on each count, to run
concurrently, and one-year of supervised release on each count,
to run concurrently. Kamalu appeals.
II.
Kamalu contends the district court erred in denying his
Rule 29 motion for acquittal because (1) Count One was
duplicitous and prejudicial and (2) the evidence was
insufficient as a matter of law to sustain his convictions on
Counts Ten and Eleven. Kamalu also contends the district court
erred in denying his Rule 33 motion for new trial because
Somma’s testimony was perjurious. Kamalu further contends the
Government failed to prove the disputed $104,020 tax loss by a
preponderance of the evidence and that the sentence of 27-months
imprisonment was unreasonable.
5
A.
A district court’s denial of a Rule 29 motion for acquittal
is subject to de novo review. United States v. Alerre, 430 F.3d
681, 693 (4th Cir. 2005).
1.
“[D]uplicity is the joining in a single count of two or
more distinct and separate offenses.” United States v. Burns,
990 F.2d 1426, 1438 (4th Cir. 1993) (internal quotation marks
omitted).
The overall vice of duplicity is that the jury cannot
in a general verdict render its finding on each
offense, making it difficult to determine whether a
conviction rests on only one of the offenses or on
both. Adverse effects on a defendant may include
improper notice of the charges against him, prejudice
in the shaping of evidentiary rulings, in sentencing,
in limiting review on appeal, in exposure to double
jeopardy, and of course the danger that a conviction
will result from a less than unanimous verdict as to
each separate offense.
United States v. Duncan, 850 F.2d 1104, 1108 n.4 (6th Cir. 1988)
abrogated on other grounds by Schad v. Arizona,
501 U.S. 624
(1991).
However, “two or more acts, each of which would constitute
an offense standing alone and which therefore could be charged
as separate counts of an indictment, may instead be charged in a
single count if those acts could be characterized as part of a
single, continuing scheme.” United States v. Shorter, 809 F.2d
6
54, 56 (D.C. Cir. 1987), abrogated on other grounds by Daubert
v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993); see also
United States v. Berardi,
675 F.2d 894, 898 (7th Cir. 1982)
(alleging multiple acts is not duplicitous if the acts are part
of a continuing course of conduct). Moreover, a duplicitous
count is not to be dismissed unless it causes prejudice to the
defendant. United States v. Sturdivant,
244 F.3d 71, 75 (2d
Cir. 2001) (citing United States v. Margiotta,
646 F.2d 729, 733
(2d Cir. 1981) and United States v. Murray,
618 F.2d 892, 896
(2d Cir. 1980)). “Where the indictment ‘fairly interpreted’
alleges a ‘continuing course of conduct, during a discrete
period of time,’ the indictment is not prejudicially
duplicitous.” United States v. Davis,
471 F.3d 783, 790 (4th
Cir. 2006).
Count One of the indictment expressly charged Kamalu with
“engaging in a continuing scheme,” thereby aggregating several
potentially discrete counts of violating § 7212(a) in a single
count. Even if doing so rendered the indictment duplicitous
despite the allegation of a continuing scheme, we are unable to
find any prejudice to Kamalu. Count One presented no risk of
double jeopardy because the Government is now foreclosed from
prosecuting Kamalu for further violations of § 7212(a) that
7
could form part of the alleged scheme. 1 Rather, Kamalu
benefitted from the aggregation because each discrete count
would have been amenable to a separate sentence upon conviction.
See Berardi, 675 F.2d at 898 (noting that charging each discrete
criminal offense in a separate count would have subjected the
defendant to multiple statutory penalties). Thus the district
court did not err in denying Kamalu’s motion for acquittal on
Count One and we affirm his conviction.
2.
When a criminal conviction is appealed on the ground that
the underlying evidence is insufficient, we review the evidence
in the light most favorable to the Government to determine
whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Abuelhawa, 523 F.3d 415, 422 (4th Cir. 2008).
1
Nor is there risk that the continuing scheme in violation
of § 7212(a) impermissibly overlapped with the discrete charges
of § 7206(2) violations because there are different elements to
each crime. Compare United States v. Aramony, 88 F.3d 1369,
1382 (4th Cir. 1996) (setting forth the elements of § 7206(2))
with United States v. Williams,
644 F.2d 696, 699 (8th Cir.
1981) (setting forth the elements of § 7212(a)). Double
jeopardy does not bar prosecution of the same act under two
criminal statutes that require proof of different elements.
United States v. Allen,
13 F.3d 105, 108-09 & 109 n.4 (4th Cir.
1993) (citing Blockburger v. United States,
284 U.S. 299, 304
(1932)).
8
Both Kamalu and the Government agree that Kamalu’s conviction on
Counts Ten and Eleven of the indictment must rest on evidence
that “(1) the defendant aided, assisted, or otherwise caused the
preparation and presentation of a return; (2) that the return
was fraudulent or false as to a material matter; and (3) the act
of the defendant was willful.” Aramony, 88 F.3d at 1382.
Cesarine Ngoma’s tax returns were the subject of Counts Ten
and Eleven of the indictment. The Government introduced no
evidence that Kamalu assisted her in the preparation of a
Schedule A or Form 2106 for the years at issue, or that Ngoma
filed those particular documents with her income tax returns.
However, Ngoma testified that Kamalu had assisted in the
preparation of a Schedule C for the tax returns at issue and on
which the false business mileage deductions appeared. That
evidence, viewed in the light most favorable to the Government,
is sufficient to establish the elements of the crime.
Kamalu argues, nonetheless, that the references to Schedule
A and Form 2106 in the indictment created a variance between the
indictment and the evidence adduced at trial (i.e., that
Schedule C, not Schedule A or Form 2106, was introduced into
evidence). However, a conviction will not be set aside for such
a variance unless it modifies the elements of the crime. United
States v. Davis, 202 F.3d 212, 216 n.3 (4th Cir. 2000). That
the false deductions Kamalu manufactured for Ngoma appeared on
9
Schedule C rather than Schedule A and Form 2106 had no effect on
the elements of the crime charged. Moreover, the indictment
accused Kamalu of “willfully aid[ing] and assist[ing] in the
preparation and presentation of . . . an Internal Revenue
Service Form 1040 and accompanying schedules” for the identified
clients in specific tax years. (Emphasis added.) That language
encompassed Ngoma’s entire tax return, including Schedule C,
giving Kamalu adequate notice of the charges against him. Thus,
the reference to Schedule A and Form 2106 in Counts Ten and
Eleven was harmless surplusage. Thus, the district court did
not err in denying Kamalu’s motion for acquittal on those counts
and we affirm Kamalu’s convictions.
B.
We review denial of a Rule 33 motion for a new trial for
abuse of discretion. United States v. Perry, 335 F.3d 316, 320
(4th Cir. 2003). A defendant may be entitled to a new trial
after a showing that the testimony of a witness was false and
that the Government offered it despite knowledge of the
falsehood. United States v. Wallace,
538 F.2d 326, 326 (4th
Cir. 1976) (per curiam). However, Kamalu’s argument that the
district court erred in denying his motion for new trial is
without merit because Somma’s testimony was true and accurate.
10
A true statement is not perjury. See, e.g., United States v.
Good, 326 F.3d 589, 591 (4th Cir. 2003).
The Internal Revenue Code requires that “any return . . .
shall . . . be verified by a written declaration that is made
under the penalties of perjury.” 26 U.S.C. § 6505 (2002). The
implementing regulations, which Kamalu does not challenge,
provide that:
if a return, declaration, statement, or other document
is prepared for a taxpayer by another person for
compensation or as an incident to the performance of
other services for which such person receives
compensation, and the return, declaration, statement,
or other document requires that it shall contain or be
verified by a written declaration that is prepared
under the penalties of perjury, the preparer must so
verify the return, declaration, statement, or other
document.
26 C.F.R. § 1.6065-1 (2008). Moreover, signatories to a Form
1040, including the tax preparer, subscribe to a declaration
that provides “Under penalties of perjury, I declare that I have
examined this return and accompanying schedules and statements,
and to the best of my knowledge and belief, they are true,
correct, and complete. Declaration of preparer (other than
taxpayer) is based on all information of which preparer has any
knowledge.” The declaration on all the tax returns in this case
expressly included the paid tax preparer, Kamalu. Finally, “[a]
tax return that does not contain such a declaration does not
contain information on which the substantial correctness of the
11
self-assessment [of income tax liability] may be judged” and is
therefore invalid. Hettig v. United States, 845 F.2d 794, 795
(8th Cir. 1988) (per curiam); accord Mosher v. IRS,
775 F.2d
1292, 1294 (5th Cir. 1985) (per curiam); Borgeson v. United
States,
757 F.2d 1071, 1073 (10th Cir. 1985) (per curiam).
Thus, even if the accusation were true that Somma intended to
testify falsely, as a matter of law her testimony was correct
and could not have caused Kamalu any legal prejudice. The
district court did not abuse its discretion in denying Kamalu’s
motion for a new trial.
C.
Finally, Kamalu contends the district court erred when it
found the tax loss exceeded $80,000 and calculated his
sentencing guidelines range accordingly. Kamalu separately
argues the 27-month sentence was unreasonable.
At oral argument, the Government informed the Court that
Kamalu’s sentence of active incarceration had been served and
that he had been released from custody. Kamalu did not dispute
the Government’s representation.
“[I]f an event occurs while a case is pending on
appeal that makes it impossible for the court to grant
any effectual relief whatever to a prevailing party,
the appeal must be dismissed,” for federal courts have
“no authority to give opinions upon moot questions or
abstract propositions, or to declare principles or
12
rules of law which cannot affect the matter in issue
in the case before it.”
Incumma v. Ozmint, 507 F.3d 281, 286 (4th Cir. 2007) (quoting
Church of Scientology of Cal. v. United States,
506 U.S. 9, 12
(1992)). Because Kamalu has completed his term of active
incarceration this Court can grant no meaningful relief on these
issues, which challenge only the length of sentence rather than
the underlying convictions, 2 and we dismiss them as moot.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
2
No retroactive adjustment of his completed sentence of
active incarceration can affect the unexpired term of supervised
release. United States v. Johnson, 529 U.S. 53, 58-59 (2000).
13
