U.S. v. Renner

• Decision Date: 08 August 2011
• Docket Number: 10–2265.,Nos. 10–2112,s. 10–2112
• Citation: 2011 USTC P 50572,108 A.F.T.R.2d 2011,648 F.3d 680
• Parties: UNITED STATES of America, Appellee/Cross Appellant,v.Steven Mark RENNER, Appellant/Cross Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

648 F.3d 680

108 A.F.T.R.2d 2011-5637

2011-2 USTC P 50,572

UNITED STATES of America, Appellee/Cross Appellant,

v.Steven Mark RENNER, Appellant/Cross Appellee.

Nos. 10–2112

10–2265.

United States Court of Appeals, Eighth Circuit.

Submitted: Feb. 18, 2011.Filed: Aug. 8, 2011.

Jon M. Hopeman, argued, Eric Riensche, Jessica Molyneaux Marsh, on the brief, Minneapolis, MN, for appellant/cross appellee.John Francis Docherty, AUSA, argued, St. Paul, MN, for appellee/cross appellant.Before WOLLMAN and BYE, Circuit Judges, and FLEISSIG,¹ District Judge.FLEISSIG, District Judge.

A jury found Steven Mark Renner guilty of four counts of tax evasion, in violation of 26 U.S.C. § 7201, and the district court ² sentenced him to 18 months' imprisonment. Renner appeals his convictions, arguing that the government constructively amended the indictment through the evidence presented at trial; the instructions erroneously defined “taxable income” and “good faith”; and the evidence was insufficient to support his convictions. The United States appeals Renner's sentence, contending that the district court erroneously relied on a fact rejected by the jury in imposing a sentence below the applicable Sentencing Guidelines range. We affirm.

I. Background

The superseding indictment, returned on January 13, 2009, charged Renner with four counts of tax evasion for tax years 2002, 2003, 2004, and 2005. The indictment alleged that in these four years, Renner underreported his income by at least $1.4 million, resulting in at least $332,000 in tax due and owing. The indictment specified that the amounts of underreported income represented monies that Renner had “diverted ... from [CCI]” and used for personal living expenditures; personal investments “in coins, oil wells, art, stamps, and vintage musical instruments”; and to promote his musical band.

CCI was an Internet company that marketed stored-value debit cards. Renner originally envisioned the company as a means for Internet businesses to pay commissions to its sales affiliates. Customers of CCI purchased “V-credits” by sending funds to CCI. The V-credits were convertible into an equivalent amount of United States currency that could be loaded onto cards that were used as ATM cards, through which the customers could make withdrawals. The V-credits could also be used as on-line currency to make purchases over the Internet from certain vendors. CCI charged its customers fees to deposit funds and to conduct transactions.

While CCI reserved the right to place a daily limit on the amount of funds that could be withdrawn and the number of transfers made, both the customer and CCI retained the right to close the customer's account, at which time CCI promised to mail the customer a check for any funds remaining in the account. The agreement between CCI and its customers did not otherwise place any limit on CCI's use of the funds for investing or other purposes. Renner initially formed CCI as a corporation, but in March 2001, converted it to a single-member LLC.

On March 1, 2006, the IRS executed search warrants at Renner's home and business. At that point in time, he had not filed tax returns for the four years at issue, but had been working on the returns with a tax accountant. On March 2, 2006, the day after the warrants were executed, Renner filed returns for these years. Each of the returns showed that CCI had lost money, and that Renner had no other source of income, and therefore no tax due and payable. In those same years, Renner spent substantial monies on personal living expenses, on purchases of items, including a condominium, for personal use, and on investments in items of personal interest. Renner's accountant testified that the returns in question were inaccurate and that he had so advised Renner.

The government also presented evidence that in October 2009, three weeks before the trial began, Renner had his accountant draw up a promissory note between CCI and Renner, pursuant to which Renner promised to repay to CCI money he had taken from it, with the first payment due on the second day of trial. There was no other evidence of a loan agreement between Renner and CCI or its customers.

At the trial, the jury was instructed that a single-member LLC is a “disregarded entity” under the Internal Revenue Code, meaning that for federal income tax purposes, the LLC is not distinguished from the individual taxpayer who owns it. Income from the LLC is attributable to the individual taxpayer, and the LLC does not file its own separate tax return. The government made clear at trial that it considered the income on which tax had been evaded to have come into Renner's hands through his taking it from CCI's customers, with no intent to repay them. At the close of the government's evidence, Renner filed a motion for judgment of acquittal, which the district court denied.

Renner's defense at trial was that no tax liability had accrued, and that he had relied in good faith on the advice of his accountant and tax attorney. He testified about serious personal and medical difficulties during the relevant time period when the tax returns were due, that he employed professionals to prepare the tax returns at issue in the case, and that he relied upon their advice. Renner's tax attorney testified, in turn, that he advised Renner in preparation of the returns in question and that the returns were substantially true and correct. According to Renner's tax attorney, the money Renner took from CCI was not income, but rather a debt he had to repay, and thus did not have to be reported as income for tax purposes until such time as the funds were demanded by customers of CCI and Renner was unable to repay them. The tax attorney testified, however, that if the money had been stolen, rather than borrowed, “that might become a different sort of transaction.... But in this case, that wasn't the case.” Renner's tax attorney stood by this position in a letter written to the court on Renner's behalf in support of a “minimal sentence,” after the jury returned its verdict.

At sentencing, the district court found an offense level of 22 based on a tax loss of approximately $1.13 million. The government advocated for a guidelines sentence of 46 to 57 months. The court found that Renner's Criminal History Category of II overrepresented the seriousness of his past behavior, and adjusted the Criminal History Category to I.³ The advisory Guidelines range for a tax loss of one million to two and a half million dollars and Criminal History Category I was 41 to 51 months. The district court granted Renner a downward variance and sentenced him to 18 months' imprisonment, three years of supervised release, and a fine of $7,500. The government did not seek, and the district court did not order, any restitution.

At the sentencing hearing, the district court repeatedly mentioned the letter sent to the court by Renner's tax attorney, and based its variance, in part, on the fact that Renner had consulted with a tax attorney and accountant before filing the tax returns in question. The court also noted that the amount of tax loss was at the low end for the applicable loss bracket, the letters on Renner's behalf that the court had received, and Renner's family support.

II. Discussion

A. Constructive Amendment of the Indictment

Renner first argues that the government constructively amended the indictment, in violation of his Fifth Amendment rights, by trying the case as a case of fraud on CCI's customers. He asserts that although there was no specific objection by defense counsel at trial, the prejudice of this error is presumed and his convictions cannot stand. The government counters that Renner's argument is essentially a claim that there was a variance between the indictment and the proof at trial, and that in any event, there was neither a constructive amendment nor a variance because the indictment charged, and the evidence at trial proved, that Renner had taken money from CCI and its customers and then evaded the payment of tax on that money.

“A constructive amendment occurs when the essential elements of the offense as charged in the indictment are altered in such a manner—often through the evidence introduced at trial or the jury instruction—that the jury is allowed to convict the defendant of an offense different from or in addition to the offenses charged in the indictment.” United States v. Whirlwind Soldier, 499 F.3d 862, 870 (8th Cir.2007); see also Stirone v. United States, 361 U.S. 212, 217–19, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). The difference between a constructive amendment of, and a variance to, an indictment

is well established, though at times difficult to apply: “a constructive amendment changes the charge, while the evidence remains the same; a variance changes the evidence, while the charge remains the same.” A constructive amendment primarily affects the defendant's Fifth Amendment right to indictment by a grand jury and constitutes reversible error per se, while a variance implicates the defendant's Sixth Amendment right to notice of the nature of the charge and is subject to harmless error analysis.United States v. Adams, 604 F.3d 596, 599 (8th Cir.2010) (quoting United States v. Stuckey, 220 F.3d 976, 981 (8th Cir.2000)).

Upon de novo review of the record, we conclude that neither a constructive amendment nor a variance occurred here. The government's proof at trial and the jury instructions corresponded with the course of conduct charged in the indictment. The evidence showed that Renner diverted funds from CCI for his own personal purposes, with no intention to repay them. The funds diverted were primarily the funds deposited by customers. Fees paid by customers amounted to only approximately three percent of gross receipts. Renner also had fair notice of the government's theory, and there was no danger that the jury might consider other, uncharged incidents in convicting him. See, e.g., ...