U.S. v. Boulerice

Decision Date14 April 2003
Docket NumberNo. 02-1035.,02-1035.
PartiesUNITED STATES of America, Appellee, v. Lisa A. BOULERICE, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Appeal from the United States District Court for the District of Massachusetts, Michael A. Ponsor, J.

COPYRIGHT MATERIAL OMITTED

Lori H. Levinson, with whom Cain Hibbard Myers & Cook, P.C., was on brief, for Appellant.

Thomas J. O'Connor, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for Appellee.

Before SELYA, Circuit Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

Defendant-appellant Lisa A. Boulerice appeals from a judgment of conviction following a jury trial in which she was found guilty of having filed false income tax returns for 1993 and 1994 in violation of 26 U.S.C. § 7206(1). On appeal Boulerice claims that there was insufficient evidence to support the findings of guilt, and that the district court therefore erred in denying her Rule 29 motion for judgment of acquittal. See Fed.R.Crim.P. 29. She also claims that the district court improperly admitted evidence of prior bad acts, and that the court abused its discretion when it declined to grant a request from the jury to read back testimony. Finally, Boulerice argues that the prosecutor's closing argument impermissibly shifted the burden of proof to her, thereby violating her due process rights. Discerning no reversible error in any of these claims, we affirm.

I. Background

This case arose out of an investigation by the Internal Revenue Service ("IRS") and the United States Postal Inspection Service ("USPIS") into the suspected criminal activities of American Inventor's Corporation ("AIC") and Massachusetts Patent Services ("MPS"), entities owned and controlled by Lisa Boulerice's father, Ronald Boulerice.1 AIC and MPS were ostensibly in the business of helping inventors secure patents for their inventions, when in fact the companies did little more than bilk the inventors out of their money. In 1995, acting on the complaints of numerous AIC and MPS clients, the USPIS launched an inquiry into the activities of AIC and MPS. This investigation ultimately led to the execution of search warrants in October 1995 at the companies' places of business in Westfield, Massachusetts, and the subsequent indictment of Ronald and eight other individuals for numerous offenses, including mail fraud, conspiracy to commit mail fraud, money laundering, conspiracy to commit money laundering, filing false income tax returns, and conspiracy to defraud the United States. Ronald ultimately pleaded guilty to several of the charges2 and was sentenced to ninety-six months' imprisonment. He was also ordered to pay $2.2 million in restitution and $7.3 million in fines.

The government's investigation into Ronald also unearthed evidence of wrongdoing on the part of his daughter Lisa, the appellant in this case. The government discovered that Lisa had been on the payroll of MPS and AIC for several years. During that time, she accepted and cashed paychecks from AIC and MPS, claiming these proceeds as "wages" on her 1991-1994 tax returns — even though she had done no work for the two companies. Indeed, during the period at issue, Lisa was pursuing her own career as a fashion designer in New York City, living in an expensive apartment on the city's Upper East Side. AIC paid for this apartment, deducting the cost as a business expense on its income tax returns. The government also uncovered evidence that, in response to a 1992 IRS audit of AIC, Lisa had backdated two job description forms, falsely detailing her supposed duties as an AIC employee.

On April 15, 1999, a grand jury sitting in Springfield, Massachusetts, returned a four-count indictment against Lisa, charging her with one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and three counts of filing false income tax returns for 1992, 1993, and 1994, in violation of 26 U.S.C. § 7206(1). On August 1, 2001, the district court commenced a jury trial, and on August 10, 2001, the jury found Boulerice guilty of filing false income tax returns for 1993 and 1994, but acquitted her of the other two counts (conspiracy and filing a false tax return for 1992). The district court sentenced Boulerice to a term of two years' probation. This appeal ensued.

II. The Rule 29 Motion

Boulerice argues that the evidence at trial "fell far short of proving that when she submitted IRS Form 1040s for 1993 and 1994, she willfully made false statements with the intent of violating her duty under the tax laws." Thus, she claims, the district court erred in denying her Rule 29 motion for judgment of acquittal. See Fed.R.Crim.P. 29(a) (indicating that court must enter judgment of acquittal "if the evidence is insufficient to sustain a conviction of such offense or offenses"). Our review of the district court's ruling is de novo. United States v. Carroll, 105 F.3d 740, 742 (1st Cir.1997). We will affirm the conviction if, "after assaying all the evidence in the light most amiable to the government, and taking all reasonable inferences in its favor, a rational factfinder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements of the crime." United States v. O'Brien, 14 F.3d 703, 706 (1st Cir.1994). We need not be convinced that the government succeeded in "eliminating every possible theory consistent with the defendant's innocence." United States v. Moran, 312 F.3d 480, 487 (1st Cir.2002). Rather, we simply consider "all the evidence, direct and circumstantial, and resolve all evidentiary conflicts in favor of the verdict." United States v. Hernandez, 146 F.3d 30, 32 (1st Cir.1998). We will affirm if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The jury found Boulerice guilty of two counts of violating 26 U.S.C. § 7206, which provides:

Any person who —

(1) Declaration under penalties of perjury.

Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter

....

shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 3 years, or both, together with the costs of prosecution.

As the verdict forms make clear, the jury found Boulerice "guilty of willfully filing a false 1993 tax return" and "guilty of willfully filing a false 1994 tax return."

We take this opportunity to clarify the government's burden under 26 U.S.C. § 7206(1). The elements of an offense under 26 U.S.C. § 7206(1) are

(1) that the defendant made or caused to be made, a federal income tax return for the year in question which he verified to be true; (2) that the tax return was false as to a material matter; (3) that the defendant signed the return willfully and knowing it was false; and (4) that the return contained a written declaration that it was made under the penalty of perjury.

United States v. LaSpina, 299 F.3d 165, 179 (2d Cir.2002) (quoting United States v. Pirro, 212 F.3d 86, 89 (2d Cir.2000) (quoting United States v. Peters, 153 F.3d 445, 461 (7th Cir.1998))); see also United States v. Scholl, 166 F.3d 964, 979 (9th Cir.1999). Boulerice concedes that she filed the returns, and she does not challenge the materiality of the false statements. She also does not contend that the tax returns failed to include the required declaration. Boulerice does maintain, however, that the government failed to demonstrate that she willfully violated the statute. She also asserts that the government failed to demonstrate that she had actual knowledge of the returns' material falsity. We address these two contentions in turn.

A. Willfulness

Boulerice insists that the government "failed to establish beyond a reasonable doubt that [she] acted willfully when she filed her income tax returns for 1993 and 1994." At trial, Boulerice took the stand in her own defense, testifying that she held an honest belief that she was required by law to file an income tax return for money that she had received from her father's corporation. She maintained that she was only doing what her accountant told her to do — file tax returns which reflected the "wages" she received from AIC and MPS. Therefore, the argument goes, the government failed to demonstrate willfulness as required by the statute. See 26 U.S.C. § 7206(1) ("Any person who willfully ....") (emphasis added).

We have previously indicated that "willfully," as that word is used in 26 U.S.C. §§ 7201-7207, means "a voluntary, intentional violation of a known legal duty." United States v. Monteiro, 871 F.2d 204, 209 (1st Cir.1989) (citing Drape, 668 F.2d at 26). The government need not present direct evidence of willfulness; rather, circumstantial evidence of willfulness can be sufficient to sustain a conviction. Id. at 211; see also United States v. Olbres, 61 F.3d 967, 971 (1st Cir.1995) ("[I]n proving tax evasion, `the government does not need to show direct evidence of tax motivation' so long as the jury has a sufficient circumstantial basis for inferring willfulness.") (quoting United States v. Hurley, 957 F.2d 1, 4 (1st Cir.1992)).

Our decision in Olbres is illuminating. Having been convicted of tax evasion under 26 U.S.C. § 7201, the defendants maintained on appeal that the government had not presented sufficient evidence of willfulness to sustain the verdict. They asserted that blind reliance on their accountant, and not willfulness or criminal intent, caused an underreporting of income. Olbres, 61 F.3d at 970. In...

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