U.S. v. Noah

• Decision Date: 03 November 1997
• Docket Number: No. 97-1403,97-1403
• Citation: 130 F.3d 490
• Parties: -8053, 48 Fed. R. Evid. Serv. 268 UNITED STATES of America, Appellee, v. Mac S. NOAH, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 490

130 F.3d 490

80 A.F.T.R.2d 97-8053, 48 Fed. R. Evid. Serv. 268

UNITED STATES of America, Appellee, v. Mac S. NOAH, Defendant, Appellant.

No. 97-1403.

United States Court of Appeals,

First Circuit.

Heard Nov. 3, 1997.

Decided Dec. 2, 1997.

Joshua L. Gordon, Concord, NH, for Defendant, Appellant.

Meghan S. Skelton, Attorney, Tax Division, U.S. Dep't of Justice, with whom Loretta C. Argrett, Assistant Attorney General, Robert E. Lindsay and Alan Hechtkopf, Attorneys, Tax Division, Washington, DC, and Sheldon Whitehouse, United States Attorney, Providence, RI, were on brief, for United States.

Before SELYA and BOUDIN, Circuit Judges, and DOWD, ^* Senior District Judge.

SELYA, Circuit Judge.

Defendant-appellant Mac S. Noah, a professional tax preparer, implores us to set aside his conviction on multiple counts of knowingly presenting fraudulent tax returns to the Internal Revenue Service (IRS). Noah insists, in a mien reminiscent of the legendary Perry Mason, that the evidence produced at his trial actually establishes the guilt of a third person. ¹ In addition, he maintains that the trial judge committed reversible error by denying a motion in limine, refusing to allow him to act as his own lawyer, exhibiting impermissible bias, and imposing an overly harsh sentence. Concluding, as we do, that none of these arguments hold water, we affirm.

I. BACKGROUND

We present the pertinent facts in the light most favorable to the jury verdict, consistent with record support. See United States v. Rivera-Gomez, 67 F.3d 993, 995 (1st Cir.1995); United States v. Maraj, 947 F.2d 520, 522 (1st Cir.1991).

In 1991, Noah, a citizen of Liberia, launched an enterprise called Easy Electronic Tax Service (EETS) in Chicago, Illinois. The business held itself out as able to prepare tax returns, file them electronically with the IRS, and arrange refund anticipation loans through a participating bank. At this point (and, indeed, at all times relevant to this case), taxpayers who wished to file their returns electronically could do so only through an approved electronic return originator. To secure such approbation, a tax preparer had to complete an application form, undergo a suitability review, and demonstrate that it possessed the requisite hardware and software. EETS filed such an application and the IRS approved it, thus paving the way for the company to participate in the electronic filing program.

In 1993, the appellant opened an EETS office in Providence, Rhode Island, and hired several friends to staff the operation. These fledgling employees had duties that ranged from answering the telephone to compiling client files to photocopying identification cards and W-2 forms. None of the recruits had any relevant professional experience in preparing tax returns or perfecting electronic filings. ² Hence, the appellant alone was responsible for preparing clients' tax returns, transmitting the forms electronically, and arranging loans.

In due season, a tax-fraud scheme blossomed. In addition to its customary, client-initiated tax filings, EETS from time to time submitted tax returns that bore the names and social security numbers of actual people, but which were embellished by concocted data (e.g., fictitious or altered W-2 forms, non-existent dependents). Based on these commentitious returns, EETS secured refund anticipation loans payable to the "taxpayers." The appellant then asked various EETS employees to convert the checks representing the loan proceeds into cash and give the realized funds to him, mendaciously telling his minions that he already had given the named beneficiaries equivalent amounts from EETS's operational accounts. In another iteration of the fraud, EETS from time to time would alter real clients' earnings statements, or increase the number of dependents, or both, in order to obtain loans based on larger-than-warranted refunds. In these instances, the appellant would pocket the excess proceeds. Either way, the participating bank would be made whole by means of the fraudulently secured refunds and the IRS would be left holding an empty bag.

The scheme proved to be pervasive: after an investigation, the IRS identified EETS as the source of approximately 100 electronic returns, 60 of which contained apocryphal items. Eighteen of those were entirely bogus. All of the latter, including the returns that corresponded to the counts of conviction, involved individuals known personally to the appellant. For example, EETS prepared a false W-2 form and filed a fraudulent tax return in the name of Fred Gayetay. Gayetay's father, Shedrick Gayetay, was an EETS employee hired by Noah. Similarly, EETS prepared fraudulent W-2 forms and other tax documents in the names of Prince and Varwoi Jordan. The Jordan siblings were high school students whose mother, Elizabeth Powell, was a friend of Noah's and also dated Shedrick Gayetay.

On July 10, 1996, a federal grand jury in the District of Rhode Island indicted the appellant on six counts of knowingly making and presenting false, fictitious, and fraudulent claims to the IRS in violation of 18 U.S.C. § 287 (1994). Following an eight-day trial, the jury found the appellant guilty across the board. Judge Lagueux sentenced him to a 33-month incarcerative term. This appeal ensued.

II. ANALYSIS

Noah's appellate counsel advances five assignments of error. We address them in the sequence indicated in the initial paragraph of this opinion.

A. Sufficiency of the Evidence.

An appellate court plays a very circumscribed role in gauging the sufficiency of the evidentiary foundation upon which a criminal conviction rests. The court of appeals neither weighs the credibility of the witnesses nor attempts to assess whether the prosecution succeeded in eliminating every possible theory consistent with the defendant's innocence. See United States v. Echeverri, 982 F.2d 675, 677 (1st Cir.1993). Instead, its task is to canvass the evidence (direct and circumstantial) in the light most agreeable to the prosecution and decide whether that evidence, including all plausible inferences extractable therefrom, enables a rational factfinder to conclude beyond a reasonable doubt that the defendant committed the charged crime. See United States v. Saccoccia, 58 F.3d 754, 773-74 (1st Cir.1995), cert. denied, 517 U.S. 1105, 116 S.Ct. 1322, 134 L.Ed.2d 474 (1996); Maraj, 947 F.2d at 522-23.

The evidence in this case passes the sufficiency test with flying colors. A rational jury easily could have found that Noah was the person at EETS who prepared clients' tax returns and filed refund claims electronically. Given the ubiquity of the spurious data, it would have been reasonable, from this evidence alone, to infer that the appellant knowingly prepared and submitted the fabricated claims. Here, however, there was considerably more. The evidence also established that the appellant knew personally all the individuals whose tax records were falsified; that he had access to the information necessary to complete the fraudulent forms; that he processed the loan applications; that he directed the conversion of the loan proceeds into cash; and that he received the money. We have no doubt but that these facts suffice to ground the verdict.

The appellant seeks to weaken this chain of inferences by offering us a new target. We should overturn his conviction, he says, because the evidence, even if legally sufficient to support the jury's verdict, points more directly to the guilt of Shedrick Gayetay. This importuning misperceives the proper office of appellate review.

The mere fact that the evidence in a case, viewed from the defendant's coign of vantage, points convincingly to another person as the guilty party does not prevent a conviction. After all, it is for the jury to mull the evidence, assess the credibility of the witnesses, and draw such reasonable inferences as it may choose. Once the jury performs that task and authors a verdict, judicial review thereafter must concentrate on whether the jury's interpretation is sustainable under the governing legal standards. See United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992) (explaining that a guilty verdict will be upheld as long as it "is supported by a plausible rendition of the record"). Whether the jury plausibly could have pointed the finger of blame at someone else is not the question. In this instance, the conclusion that the jury reached is reasonable in light of the evidence presented at trial and there is no principled basis for overturning the verdict on the ground of evidentiary insufficiency.

B. Motion in Limine.

Some weeks prior to trial, the appellant moved in limine to exclude evidence of bogus tax filings apart from those described in the indictment's six counts. On the brink of trial, the district court heard argument on the motion. Defense counsel claimed that the introduction of the challenged evidence would be "cumulative" and "highly prejudicial," and would consume too much preparation time. Citing Fed.R.Evid. 404(b), the court denied the motion as premature in the absence of a specific evidentiary context. During trial, the government offered only a small quantity of the challenged evidence, which with one exception was received absent any objection.

In this venue, the appellant's new lawyer puts a fresh spin on the motion in limine. He asseverates that the district court should have treated it as a request for a bill of particulars and granted it on this basis. We are not persuaded.

In the court below, the appellant filed a document that he characterized as a motion in limine and, consistent with counsel's assertion that the admission of the challenged evidence would be cumulative and highly prejudicial, the court reasonably understood the motion as one implicating Rule 404(b). Although a trial court may not rely woodenly on a motion's label and ignore its purport, this motion bore scant similarity to a prototypical motion...