U.S. v. Clark

• Citation: 577 F.3d 273
• Decision Date: 24 July 2009
• Docket Number: No. 07-51442.,07-51442.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Willie CLARK, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

577 F.3d 273

UNITED STATES of America, Plaintiff-Appellee, v. Willie CLARK, Jr., Defendant-Appellant.

No. 07-51442.

United States Court of Appeals, Fifth Circuit.

July 24, 2009.

Joseph H. Gay, Jr. Asst. U.S. Atty., Elizabeth Berenguer, San Antonio, TX, for U.S.

James Scott Sullivan (Cour-Appointed), Law Offices of J. Scott Sullivan, San Antonio, TX, for Clark.

Appeals from the United States District Court for the Western District of Texas.

Before HIGGINBOTHAM, GARZA and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Defendant-Appellant Willie Clark, Jr. ("Clark") appeals his convictions on multiple counts of willfully aiding and assisting the preparation of false tax returns, in violation of 26 U.S.C. § 7206(2), and presenting false claims for tax refunds, in violation of 18 U.S.C. § 287. He asserts that (1) the district court should have dismissed his indictment with prejudice for violation of the Speedy Trial Act, (2) there is insufficient evidence to support the jury's guilty verdict, and (3) the district court abused its discretion by admitting certain evidence. For the following reasons, we AFFIRM Clark's convictions.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

In this tax fraud case, a jury found Clark guilty of preparing fraudulent tax returns for fifteen taxpayers in exchange for a fixed fee and percentage of the refund obtained. Clark's actions with respect to each of the fifteen taxpayers were remarkably similar. We describe Clark's interactions with three representative taxpayers.

1. Taxpayer McDonald

Clark met Taxpayer McDonald ("McDonald") in a gym locker room in early 2000. After discussing McDonald's tax situation, Clark gave McDonald his business card, led him to believe that he was a "competent" and "experienced" tax preparer, and offered to prepare his federal tax return in exchange for a set fee plus a percentage of his tax refund. McDonald gave Clark all of his and his then-wife's financial documents and paid Clark's fee. Clark then gave McDonald specific tax advice on various tax topics and informed McDonald that he could file amended returns for prior years for him to obtain additional refunds. Clark prepared 2000 and amended 1999 returns for McDonald. On the 1999 return, Clark accurately reported McDonald's income but falsely listed a business loss of approximately $69,000, rendering his taxable income $0. As a result, McDonald received a refund of $4,200, the entire amount of his federal withholding. Clark did not indicate that he was the "paid preparer" of the return.

Sometime before 2001, the IRS informed McDonald that it would audit his 1999 return. McDonald called Clark to seek his advice. Clark responded by telling McDonald that he would be able to "hold off the audit" if he amended his 1999 return, and Clark filed the amendment.

2. Taxpayer Myers

In 1999, Clark met with Taxpayer Myers ("Myers"), a self-employed plumber, to prepare his 1999 federal tax return. Clark provided Myers with a business card that described Clark as a "PARALEGAL & TAX CONSULTANT" and Chief Executive of "The TAX PEOPLE," and Clark further described himself as a former IRS agent. Myers paid Clark a fixed fee and, at Clark's request, signed a power of attorney. Clark advised Myers on various tax issues.

When Clark presented Myers his completed 1999 return, Myers noticed that, although the return accurately listed his employment earnings, it falsely reported his filing status and reflected a "totally false" business loss of approximately $145,000. Myers did not provide Clark with any documentation that could support such a loss and told Clark that it was "pretty bogus." Clark, however, assured Myers that he knew "the in[s] and outs," that "[w]e'll send it in and you won't have to worry about no taxes, you know," and that "people in business shouldn't have to be paying all these taxes." As a result of Clark's filing, Myers reported taxable income of $0. Clark later prepared Myers's 2000 return, which was similarly false.

3. Taxpayers Mr. and Mrs. Halsell

Clark met with Taxpayers Mr. and Mrs. Halsell (the "Halsells") and explained to them that he had "special knowledge of doing the taxes so that people can get what was owed to them that the Government doesn't tell them." He gave them references and showed them prior returns on which he had obtained "substantial" refunds. The Halsells provided Clark with their tax documents and agreed to pay his fee and a percentage of their refund, and Clark then told them that he would return home to "input [their information] into a special computer that nobody else has." Clark also had the Halsells sign a power of attorney and blank tax forms.

Clark subsequently prepared the Halsells' 2000 return and electronically filed it with the IRS without ever showing it to them. The return accurately listed their wages but falsely reported a business loss of approximately $109,000. This rendered the Halsells' taxable income $0 and resulted in a refund of approximately $5,500. Notably, the Halsells never provided Clark with any information that could support the claimed business loss. Clark further prepared amended returns for the Halsells for 1998 and 1999, "totally wiping out" their previously reported taxable income with false business losses.

4. The Investigation

Beginning in 2000, the IRS contacted each of the fifteen taxpayers for whom Clark had prepared returns and informed them that it would be auditing their returns. Each attempted to contact Clark to seek his advice as to how to proceed. However, Clark refused to return their calls and engaged in "stalling tactics." He also refused to return their financial records to them.

In May 2001, IRS criminal investigators began to look into Clark's alleged fraudulent activities. During the investigation, agents searched Clark's trash. The search revealed, inter alia: business cards describing Clark as a "tax consultant" and "paralegal" who offered "tax advice" and "tax preparation" for "business & individual returns" and that described Clark as the owner of his business; numerous taxpayer documents and records, including the Halsells' electronic filing forms and Myers's wife's unfiled separate return; file folders with the names of various taxpayers; a notice from the IRS to another of the fifteen taxpayers; and copies of processed checks payable to Clark that were drawn on two of the taxpayers' bank accounts. Notwithstanding this evidence, Clark denied preparing any tax returns or knowing any of these people. Following audits, the IRS determined that all fifteen taxpayers owed additional taxes.

B. Procedural History

This case followed a long, tortured path from indictment to eventual conviction, due almost entirely to Clark's requests for continuances and new counsel. Because of its importance to Clark's Speedy Trial Act claim, we detail this procedural history at some length.

On March 16, 2005, a grand jury indicted Clark on five counts of willfully aiding and assisting the preparation of false tax returns, in violation of 26 U.S.C. § 7206(2), and five counts of presenting false claims for tax refunds, in violation of 18 U.S.C. § 287. Forty-eight days later, on May 4, 2005, Clark filed the first of five unopposed motions for continuances, resulting in delays that were excludable from Speedy Trial Act calculations from May 4, 2005, to February 6, 2006. After two non-excludable days elapsed, the court—again at Clark's request—granted two additional continuances, resulting in excludable delays from February 8, 2006, to May 22, 2006. For each of the seven continuances, the court expressly found that "the interest of justice" necessitated the continuance. One of these continuance requests resulted from Clark's back surgery, and defense counsel Jack Carter ("Carter") requested the others to peruse the discovery, prepare for trial, and discuss possible pleas with the government because he felt he had an ethical obligation to present such an option to his client.

On May 2, 2006, Clark filed a pro se motion to dismiss his indictment with prejudice for violation of the Speedy Trial Act, to dismiss his counsel, and to be appointed new counsel. The court denied the motion on May 25, 2006.

On May 8, 2006, the government moved for a continuance because the May 22, 2006 rescheduled trial date conflicted with the prosecutor's daughter's graduation from the U.S. Air Force Academy. The court granted the continuance "in the interest of justice" and set the trial for July 17, 2006.

On June 27, 2006, the government sought a second continuance. Government counsel explained that the July 17, 2006 rescheduled trial date conflicted with another trial that government counsel was prosecuting in another city and that continuity of counsel was extremely important in the case because it involved complex evidentiary and proof issues. The court once again continued the trial, ultimately setting it for January 29, 2007. Its order did not expressly note that the continuance was "in the interest of justice."

On January 5, 2007, Clark filed a second pro se motion to dismiss his attorney and request that the court appoint him new counsel, and on January 18, 2007, he again filed a pro se motion to dismiss on Speedy Trial Act grounds, which the court denied. On January 22, 2007, Clark's attorney, Jack Carter, moved to withdraw as counsel, citing a "total lack of communication[,] preventing an adequate defense," following Clark's repeated motions to dismiss him as counsel. The court permitted Carter to withdraw and appointed Albert Rodriguez as new counsel. It reset the trial for March 19, 2007.

Defendant filed a pro se interlocutory appeal of the court's denial of his motion to dismiss, which this court dismissed for lack of jurisdiction. See United States v. Clark, No. 07-50273 (5th Cir. Apr. 6, 2007). While the interlocutory appeal was pending, the district court permitted Rodriguez to withdraw for medical reasons and...