U.S. v. Brickey, 00-10561.

Citation289 F.3d 1144
Decision Date16 May 2002
Docket NumberNo. 00-10561.,00-10561.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ronnie Joseph BRICKEY, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Atmore L. Baggot, Apache Junction, Arizona, for the defendant-appellant.

Robert E. Lindsay, Alan Hechtkopf, Gregory Victor Davis, Attorneys, Tax Division, Department of Justice, Washington, DC, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding. D.C. No. CR 99-00698-PHX-EHC.

Before: GOODWIN and TROTT, Circuit Judges, and EZRA,* District Judge.

EZRA, District Judge.

Defendant-Appellant Ronnie Joseph Brickey ("Defendant") appeals his jury trial conviction and sentence for willfully making a false income tax return (26 U.S.C. § 7206(1)) and attempting to evade income taxes (26 U.S.C. § 7201). We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and we affirm.

I. FACTS

Defendant worked as a border inspector for the Immigration and Naturalization Service ("INS") at the San Luis, Arizona, Port of Entry, beginning in August 1996. During 1997, Defendant received more than $120,000 in income by participating in a scheme whereby cars were permitted to cross into the United States from Mexico without subjecting them to routine inspection. Defendant failed to report this income on his 1997 federal income tax return, and failed to pay income tax on the funds.

An indictment charging the two tax offenses was returned on August 18, 1999, and Defendant first appeared before a Magistrate Judge on August 24, 1999. The first Pretrial Motion was filed on June 8, 2000. Defendant's trial counsel filed six motions for extensions of time within which to file pretrial motions and to reschedule trial of the case. The district court granted all 6 continuances. A seventh motion to continue the trial was granted in order to ensure the continuity of government counsel. The trial commenced on July 11, 2000.

Defendant enlisted in the United States Marine Corps in October 1990. In August 1991, defendant married Veronica Brickey Garcia ("Veronica"). Upon their marriage, Defendant and Veronica moved to Hawaii, where Defendant remained in the Marine Corps, earning less than $15,000 per year, and Veronica worked as a caregiver earning minimum wage. Defendant left the Marine Corps in October 1994, going to work as a janitor and mechanic, and continuing to receive low wages. During 1995 and 1996, Veronica was employed as a medical assistant, still earning minimum wage. When Defendant began working for the INS in August 1996, his starting salary was approximately $20,000 per year, which he elected to have directly deposited into his bank account. In 1997, Defendant's gross wages as an INS inspector totaled $31,414.51. Defendant continued to work for the INS through the time of trial.

Beginning sometime between March and May of 1997, Defendant purchased several expensive items including a new truck, numerous computer gadgets, a digital camera, a laptop computer, a new car, and furniture. Many of these items were paid for in cash. In July 1997, Veronica overheard a telephone conversation that Defendant had with his uncle Pablo Cordova-Barva ("Pablo"). Defendant told Pablo that Defendant was getting low and asked "when were they going to be crossing more tacos." Defendant then stated, "so you are going to be coming in El Paloma," and told Pablo, "just make sure there is someone across the border in the hotel watching me, because they switch lanes every 30 minutes." After this conversation, Veronica asked Defendant whether he was doing "dirty business" with his uncle. Defendant responded, "I just had to close my eyes and I would get $15,000 per car. My uncle was the one arranging the cars that would go across the border."

Beginning in early July 1997, when Pablo visited Defendant and Veronica's home, Veronica saw Defendant in possession of large amounts of cash. On one occasion, after Defendant and Pablo left the bedroom, Veronica entered and discovered a bank bag containing packs of money in denominations of $20 and $50 in a drawer. At a later time, Veronica walked into the bedroom and saw her queen-size bed covered with packs of money. On that occasion, Defendant telephoned Pablo and said he was missing some money. Twice after Defendant returned from taking his two sons to Mexico, Veronica saw currency in the diaper bags she had given Defendant to take with the children.

On December 17, 1997, after an argument with Defendant, Veronica went to the port of entry where Defendant worked and asked to speak with a supervisor. Veronica spoke with two government agents and told them what the Defendant had been doing. The following day, Veronica left Arizona to visit her aunt in California. On December 27, 1997, upon her return to Arizona, Defendant presented Veronica with a diamond bracelet. On December 29, 1997, Veronica met with Defendant again, and Defendant asked her to retract all of the statement she had made to the officials at the port of entry. That same day, Veronica accompanied Defendant to his attorney's office. Defendant's attorney referred Veronica to a second attorney, who prepared a letter on Veronica's behalf stating that she intended to recant the statements she had made to the officials at the port of entry. At trial, Veronica acknowledged that her statements to the two attorneys were untrue.

Defendant engaged Juan Evangalista, the owner of a tax preparation business, to prepare Defendant's 1997 federal income tax return. Evangalista prepared the return using information Defendant provided. When Evangalista asked Defendant whether his wages from the INS were his sole income for 1997, Defendant answered that they were, denying that he had any other income. Defendant's 1997 Form 1040A reported an adjusted gross income of $31,415. After adjustments for the standard deduction for a person using married filing separately filing status, and for one personal exemption, Defendant's return showed a taxable income of $25,315, and a tax due of $4,413.

Brian Leighton, an IRS Special Agent, used the bank deposits plus cash expenditures method of proof to determine Defendant's 1997 gross income. Adding the bank deposits total of $23,345.23, the $8,479.26 withheld from Defendant's gross income that was not deposited into the bank accounts, and Defendant's total cash expenditures for 1997 of $130,264.64, Leighton arrived at a figure of $162,089.13 for bank deposits plus cash expenditures. Leighton then made certain adjustments to the figure to eliminate the possibility of double counting. Using the corrected figure of $155,830.70, IRS revenue agent John Carroll determined that Defendant's actual taxable income was $149,730.70. Applying the pertinent tax rate to this number, Carroll determined that Defendant's 1997 tax liability was $46,448.71, instead of the $4,413 reported on Defendant's return. After deducting the tax already paid, Carroll found that Defendant had tax due and owing of $42,035.71 for 1997.

Defendant denied causing loads of illegal drugs to enter the United States or closing his eyes to allow drug cars across the border. He also denied that any of the money he spent during 1997 was income to him for that year, claiming instead that all of the funds had come from savings he had accumulated. Defendant stated that the $15,000 he placed in his brother Sergio's name at Warehouse Electronics was provided by Defendant's mother. Blanca Elena Koehn-Cordova, Defendant's mother, also testified that she provided the $15,000 used to open the account in Sergio's name, money she claimed to have saved from social security payments made to her and on behalf of her children.

II. PROCEDURAL BACKGROUND

Defendant was charged with one count of attempting to evade taxes, in violation of 26 U.S.C. § 7201, and one count of willfully making a false federal income tax return signed under penalties of perjury, in violation of 26 U.S.C. § 7206(1). On July 21, 2000, the jury returned verdicts finding the Defendant guilty on both counts.

At sentencing, the district court adopted the Presentence Report in its entirety, enhancing Defendant's base offense level for "abuse of trust," pursuant to U.S.S.G. § 3B1.3, and failure "to report or to correctly identify the source of income exceeding $10,000 in any year from criminal activity," pursuant to U.S.S.G. § 2T1.1(b)(1)(1998).1 On October 25, 2000, the district court sentenced Defendant to thirty-seven months' imprisonment as to Count 1, and thirty-six months' imprisonment as to Count 2, to run concurrently with each other, followed by three years' supervised release. The district court also ordered Defendant to pay a fine of $40,000 and a special assessment of $200. The judgment was entered on October 27, 2000, and filed on November 1, 2000. Defendant filed a timely notice of appeal on November 1, 2000.

III. DISCUSSION
A. SPEEDY TRIAL ACT

"We review the district court's disposition of a Speedy Trial Act issue for clear error as to factual findings and de novo as to application of legal standards." United States v. Berberian, 851 F.2d 236, 239 (9th Cir.1988); see also United States v. Henderson, 746 F.2d 619, 622 (9th Cir. 1984), aff'd, 476 U.S. 321, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986).

Under the Speedy Trial Act,

[i]n any case in which a plea of not guilty is entered, the trial of a defendant charged in an ... indictment with the commission of an offense shall commence within seventy days from the filing date ... of the ... indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. § 3161(c)(1).

In this case, the indictment charging the two tax offenses was returned on August 18, 1999, and Defendant...

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