U.S. v. Mudekunye
| Citation | 646 F.3d 281 |
| Decision Date | 11 July 2011 |
| Docket Number | No. 09–10968.,09–10968. |
| Parties | UNITED STATES of America, Plaintiff–Appellee,v.Joseph MUDEKUNYE; Fabian Muyaba, Defendants–Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
OPINION TEXT STARTS HERE
Katherine Ann Miller (argued), Leigha Amy Simonton, Asst. U.S. Attys., Dallas, TX, for Plaintiff–Appellee.Abe Factor (argued), (Court–Appointed), Factor & Campbell, L.L.P., Fort Worth, TX, Nabil Zuhdi (argued), (Court–Appointed), Zuhdi Law Offices, Oklahoma, OK, for Defendant–Appellant.Appeal from the United States District Court for the Northern District of Texas.Before BARKSDALE, CLEMENT and PRADO, Circuit Judges.PER CURIAM:
Fabian Muyaba, Joseph Mudekunye, and three co-defendants were charged in a 39–count indictment stemming from their tax-fraud conspiracy. Muyaba, Mudekunye, and one co-defendant were convicted in a joint jury trial. Muyaba challenges the sufficiency of the evidence to support his convictions; the district court's applying two Sentencing Guideline enhancements; and its ordering part of his sentence to run consecutively. Mudekunye challenges its failure to sever his trial from Muyaba's; and his sentence as being procedurally unreasonable. We AFFIRM in part and VACATE and REMAND in part.
From 2004 to 2007, Mudekunye and Muyaba worked as tax preparers at Reliable Tax Services in Dallas, Texas, where they participated in a conspiracy to file fraudulent tax returns. In 2007, Muyaba began operating Efficient Tax Service, where he and Mudekunye prepared tax returns in a similar, fraudulent manner.
At both Reliable and Efficient, Mudekunye and Muyaba falsified tax returns in several ways, inter alia: changing their clients' filing status (“single” to “head of household”); and claiming losses for non-existent businesses. Upon receiving their tax refunds, the clients were charged sizeable and misleading fees.
To avoid IRS detection, Reliable submitted returns using a different Electronic Filer Identification Number each year. Defendants also hid their fraudulent operations by denying their clients copies of their returns, despite repeated requests. Consequently, until they were contacted by the IRS, many clients were unaware their tax returns contained false information.
Following a Government investigation, Mudekunye, Muyaba, and three co-defendants were charged in the 39–count indictment. All were charged with conspiracy to prepare fraudulent tax returns, in violation of 18 U.S.C. § 371. Mudekunye and Muyaba were each charged with multiple counts of: aiding and assisting in the preparation of fraudulent tax returns, in violation of 26 U.S.C. § 7206(2); aiding and abetting, in violation of 18 U.S.C. § 2 and 26 U.S.C. § 7206(2); and identity theft, in violation of 18 U.S.C. § 1028(a)(7) and (c)(3)(A).
At the conclusion of the Government's case-in-chief, Muyaba's motion for judgment of acquittal was granted for three counts. A jury found Muyaba guilty on seven of ten counts; Mudekunye, six of 12.
Muyaba was sentenced, inter alia, to 120 months' imprisonment: 60 on count 1 (conspiracy); a consecutive 24 on count 33 (preparation of fraudulent tax forms); and 36 each on counts 27–28 and 30–32 (same offense), to run concurrently with each other, but consecutive to the sentences for counts 1 and 33. Mudekunye received, inter alia, 97 months' imprisonment: 60 on count 1 (conspiracy); 36 on counts 7, 9, and 25 (preparation of fraudulent tax forms); and 97 on counts 35–36 (identity theft), to run concurrently.
Muyaba's, then Mudekunye's, claims are addressed. Analysis of one or more claims for each is restricted because their review is only for plain error.
Muyaba presents two challenges to his convictions; four, to his sentence. Each fails.
Muyaba preserved his sufficiency challenge by moving, pursuant to Federal Rule of Criminal Procedure 29(a), for judgment of acquittal at the close of both the Government's case-in-chief and all the evidence. Accordingly, review is de novo. E.g., United States v. Simmons, 470 F.3d 1115, 1120 (5th Cir.2006). His “verdict will be affirmed if a reasonable trier of fact could conclude from the evidence that the elements of the offense were established beyond a reasonable doubt”. Id. (citation and internal quotation marks omitted). All evidence is viewed, and reasonable inferences drawn, in the light most favorable to the verdict; “we evaluate neither the weight of the evidence nor the credibility of the witnesses”. Id. “ ‘The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, and the jury is free to choose among reasonable constructions of the evidence.’ ” United States v. Anderson, 174 F.3d 515, 522 (5th Cir.1999) (quoting United States v. Burton, 126 F.3d 666, 669–70 (5th Cir.1997)).
For his sufficiency challenge to his conspiracy conviction, Muyaba contends: the evidence did not show he worked at Reliable; and, therefore, the Government did not establish his involvement in the tax-fraud conspiracy there. The Government had to prove beyond a reasonable doubt that “defendant either positively or tacitly agreed with another person to accomplish a common and unlawful plan, and that during the existence of the conspiracy, one of the conspirators knowingly committed an overt act in furtherance of the conspiracy”. United States v. Bourgeois, 950 F.2d 980, 983 (5th Cir.1992). The agreement need not be explicit, and “may be inferred from a concert of action”. United States v. Mann, 161 F.3d 840, 847 (5th Cir.1998) (citation and internal quotation marks omitted).
The evidence established that Muyaba worked as a tax preparer at Reliable; had a cubicle there; was engaged by many clients when they visited it for tax-filing help; and was one of several of its tax preparers who fraudulently prepared returns. A rational trier of fact could find, beyond a reasonable doubt, that Muyaba was part of the conspiracy.
Muyaba also makes a sufficiency challenge to his conviction for aiding and assisting in the preparation of false and fraudulent tax forms at Reliable. The Government had to prove, beyond a reasonable doubt, that Muyaba “willfully aided, assisted, counseled, or advised another in the preparation or presentation under the internal revenue laws of a document that is fraudulent or false as to any material matter”. United States v. Clark, 577 F.3d 273, 285 (5th Cir.2009) (citation and internal quotation marks omitted).
A reasonable jury could have found Muyaba guilty on those counts. Evidence established that, while working at Reliable (and Efficient), Muyaba presented himself as a tax-return preparer; discussed tax returns and refunds with his clients; received tax-preparation information from them; and claimed business losses, credits, and deductions on their returns that were neither substantiated nor requested.
Muyaba insists some of the trial testimony was “incredible and unworthy of belief”. As noted, the evidence's being sufficient does not require the removal of all doubt, e.g., Anderson, 174 F.3d at 522; and, it is not our role to evaluate witness credibility—that, of course, is for the jury, Simmons, 470 F.3d at 1120. Moreover, to the extent Muyaba contends there was a lack of evidence showing he filed the fraudulent returns, he misstates the elements for violation of 26 U.S.C. § 7206(2): that defendant must file the return is not one of them. See Clark, 577 F.3d at 285.
In challenging two enhancements to his offense level, Muyaba contends: the one for leader-or-organizer does not apply to him; and the one for obstruction-of-justice was applied incorrectly because he did not commit perjury at trial. The district court's findings of fact for sentencing are reviewed for clear error; its application and interpretation of the Guidelines, de novo. United States v. Creech, 408 F.3d 264, 270 n. 2 (5th Cir.2005). Of course, the leader-or-organizer and obstruction-of-justice enhancements involve factual findings, reviewed for clear error; however, “[a] ruling that ... findings permit an obstruction-of-justice enhancement is a question of law, reviewed de novo”. United States v. Miller, 607 F.3d 144, 148 (5th Cir.2010) (citations and internal quotation marks omitted). “A factual finding is not clearly erroneous if it is plausible in light of the record read as a whole.” United States v. Valencia, 44 F.3d 269, 272 (5th Cir.1995).
Guideline § 3B1.1(c) provides: “If the defendant was an organizer, leader, manager, or supervisor in any criminal activity ..., increase [his offense level] by 2 levels”. Its commentary states:
To qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants. An upward departure may be warranted, however, in the case of a defendant who did not organize, lead, manage, or supervise another participant, but who nevertheless exercised management responsibility over the property, assets, or activities of a criminal organization.
U.S.S.G. § 3B1.1 cmt. n. 2.
The court applied the two-level enhancement based upon finding that Muyaba “was an organizer and a leader in the Efficient Tax Service”, serving as its owner, and the employer of at least one other person, Mudekunye. In contesting this enhancement based upon his role at Efficient, although he is silent about his work there, Muyaba maintains the district court clearly erred because “he didn't play as big a part in Reliable as the others”. The enhancement was based upon Muyaba's role at Efficient, not Reliable.
In challenging his obstruction-of-justice enhancement for perjury at trial, Muyaba maintains: his testimony about Amber Redden was his “belief”, which is insufficient to be classified as a lie; and evidence of Muyaba's wife having removed his office documents following his arrest is insufficient to show he lied about not having access to his business...
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