319 F.3d 1218 (10th Cir. 2003), 01-4260, U.S. v. Anderson

Docket Nº:01-4260.
Citation:319 F.3d 1218
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Larry F. ANDERSON, Defendant-Appellant.
Case Date:February 10, 2003
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1218

319 F.3d 1218 (10th Cir. 2003)

UNITED STATES of America, Plaintiff-Appellee,

v.

Larry F. ANDERSON, Defendant-Appellant.

No. 01-4260.

United States Court of Appeals, Tenth Circuit

February 10, 2003

Thomas N. Thompson, Haskins & Associates, P.C, Salt Lake City, UT, for Defendant-Appellant.

Paul M. Warner, United States Attorney, Elizabethanne C Stevens, Assistant United States Attorney, Salt Lake City, UT, for Plaintiff-Appellee.

Before BRISCOE, Circuit Judge, BRORBY, Senior Circuit Judge, and HARTZ, Circuit Judge.

BRISCOE, Circuit Judge.

Appellant Larry F. Anderson appeals his conviction for tax evasion, a violation of 26 U.S.C. § 7201. He argues that his tax liability arose in 1992 and the six-year statute of limitations applicable to tax evasion cases had expired when the government filed its indictment against him in 1999.1 We join our sister circuits in holding

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that in tax evasion cases where, as here, the defendant commits acts of evasion after incurring a tax liability, the statute of limitations begins to run on the date of the last affirmative act of evasion. In this case, Anderson's final evasive act occurred in 1996. As a result, the indictment filed against Anderson in 1999 was filed well within the six-year statute of limitations. Anderson also argues that the district court committed reversible error by disqualifying his trial counsel. We conclude the district court did not err in its ruling. We affirm Anderson's conviction.

I.

On March 24, 1999, the United States filed an indictment charging Anderson with violations of the Hobbs Act, mail fraud, tax evasion, and false statements in his tax returns. Count III charged Anderson with tax evasion under 26 U.S.C. § 7201, alleging (1) Anderson received a $50,000 payment on February 28, 1991, that was placed in a Swiss bank account; (2) he received a $50,000 payment on July 1, 1991, that was placed in a Swiss bank account; (3) he filed a tax return on April 15, 1992, in which he failed to report this income and he denied any interest in a foreign bank account; and (4) on his tax returns for 1993, 1994, 1995, and 1996, he denied any interest in a foreign bank account. A jury found Anderson guilty of Count III, as well as other charges that are not appealed.

II.

Under 26 U.S.C. § 7201, it is a felony for any person to "willfully attempt[ ] in any manner to evade or defeat any tax" imposed under the Internal Revenue Code. In order to prove a defendant guilty of tax evasion, the government must show (1) a substantial tax liability, (2) willfulness, and (3) an affirmative act constituting evasion or attempted evasion. United States v. Mounkes, 204 F.3d 1024, 1028 (10th Cir. 2000). The statute of limitations period for this offense is six years. 26 U.S.C. § 6531.

Anderson argues that, because the crime of tax evasion was complete when he filed his return on April 15, 1992, the indictment filed on March 24, 1999, fell outside the six-year statute of limitations. The government argues that because Anderson filed a false return in 1996, the prosecution was timely. We review the district court's interpretation of the statute of limitations de novo. See Foutz v. United States, 72 F.3d 802, 804 (10th Cir. 1995).

While neither the United States Supreme Court nor this court has addressed...

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