United States v. Cottman, 032320 FED4, 18-4794
| Opinion Judge | PER CURIAM. |
| Party Name | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAWN CHAPELLE COTTMAN, Defendant-Appellant. |
| Attorney | Erek Lawrence Barron, WHITEFORD, TAYLOR & PRESTON, LLP, Rockville, Maryland, for Appellant. Sean Richard Delaney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. Robert K. Hur, United States Attorney, Martin J. Clarke, Assistant United States Attorney, OFFICE OF THE UNITE... |
| Judge Panel | Before MOTZ, WYNN and THACKER, Circuit Judges. |
| Case Date | March 23, 2020 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Fourth Circuit |
UNPUBLISHED
Argued: January 30, 2020
Appeal from the United States District Court for the District of Maryland, at Baltimore. George L. Russell, III, District Judge. (1:17-cr-00084-GLR-1)
ARGUED:
Erek Lawrence Barron, WHITEFORD, TAYLOR & PRESTON, LLP, Rockville, Maryland, for Appellant.
Sean Richard Delaney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF:
Robert K. Hur, United States Attorney, Martin J. Clarke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Before MOTZ, WYNN and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM.
A grand jury returned a superseding indictment charging Dawn Cottman ("Appellant") with 15 counts of using her tax preparation service, 40 AM Tax Service, to defraud the Government, wire fraud, aggravated identity theft, and filing false tax returns. Following a jury trial, Appellant was convicted on 14 counts, and was subsequently sentenced to a total of 84 months of imprisonment.
Appellant raises two assignments of error. First, she argues the district court improperly denied her motion to suppress statements she made to agents during a search of her home. Second, she argues the district court abused its discretion in allowing testimony that the name of her tax preparation service, "40 AM," stood for "40 Acres and a Mule." Appellant asserts that the reference was overly inflammatory and prejudicial.
For the reasons that follow, we affirm.
I.
A.
Search of Appellant's Home1
On May 7, 2013, at approximately 9:45 a.m., federal law enforcement agents executed a search warrant at Appellant's residence. The agents waited until Appellant had left the house and made a "soft entry," meaning they knocked at the door and waited until someone opened it.
Appellant's brother answered the door. Agents entered the residence wearing vests with "IRS Federal Agents, Police" printed on them. They did not draw their guns upon entering. The agents advised Appellant's brother of their purpose in being there, and "took control of him and [] searched him to make sure that he did not have any weapons." J.A. 104.2 This meant they "put him up against the wall and then [] had an agent pat him down." Id. Meanwhile, other agents conducted a quick preliminary search of the house to make sure no one else was there. They found Appellant's daughter in the house, and agents took her to the living area of the house, near the kitchen on the first floor, where she sat on a sofa next to her uncle (Appellant's brother).
There were "about 15 to 20 agents throughout the house" during the search. J.A. 129. Some agents were standing in the living room with Appellant's brother and daughter "to make sure that they didn't go anywhere and that they were obeying the rules of the search." Id. Appellant's brother and daughter were not allowed to move around unless they were escorted by an agent. According to Special Agent Mark Schmidt ("Agent Schmidt"), Appellant's brother and daughter were "free to leave the house" if they wanted. Id. at 108. However, they were never actually told they were free to leave.
Some time later, Appellant drove back to her house. When Appellant arrived at her house, Agents approached her car while she was still in it and explained that they were searching her house. They also asked Appellant if she was willing to answer some questions, and she agreed to do so. Appellant parked her car down the street from her home (because the agents' cars were parked close to the house) and walked inside, escorted by agents. The agents suggested that they talk to Appellant in the "club room," a room at ground level but below the primary entry level. Before going downstairs, Appellant checked on her daughter, who was still sitting with Appellant's brother in the living area. Neither Appellant nor her child showed signs of being upset. Appellant was not placed under arrest, was not told she was under arrest, and was not physically constrained. But, if Appellant wanted to move around her own house, she had to be escorted by a female agent.
Appellant went downstairs to the club room with Agent Schmidt and Special Agent David Meisenheimer ("Agent Meisenheimer") to answer their questions. In the club room, there was a window and a door leading to the backyard area. During the interview, other agents were also in the club room searching for evidence. For the entire time Appellant talked to the agents, they did not read Appellant her Miranda3 rights. The officers made no promises or offers of leniency.
The agents testified that during the interview, Appellant did not express concern for her daughter and did not ask to stop the interview, that is, until her attorney called her cell phone 40 minutes into the interview. After she conversed with her attorney for around five minutes, Appellant told the agents she would not answer any more questions. At that point, the agents ended the interview and Appellant went back upstairs and sat with her brother and daughter until her attorney arrived.
B.
The Suppression Hearing
Appellant moved to suppress her statements from her interview with Agent Schmidt and Agent Meisenheimer. The district court held a suppression hearing on April 5, 2018. Only Agent Schmidt and Agent Meisenheimer testified at the suppression hearing. At the conclusion of the hearing, the district court denied the motion to suppress.
The district court found the following facts: Appellant arrived at her home in the midst of the execution of the search warrant; Appellant was free to move about her home, as long as she was escorted; Appellant agreed to speak with the agents; the agents and Appellant were seated on the couch in the basement area during the interview; the agents did not draw their guns or raise their voices during their conversation with Appellant and did not provide Appellant with her Miranda rights; the agents did not provide any promises of leniency or coerce Appellant into speaking with them; and Appellant fully understood the agent's questions and gave them detailed answers to their questions.
Then, the district court assessed the length of the interview itself. The district court found the interview lasted less than an hour and immediately stopped after Appellant spoke with her attorney and advised that she did not want to answer any more questions.
The district court ultimately concluded that the interview was noncustodial because Appellant freely and voluntarily participated in the interview, and knowingly and voluntarily terminated it. Because the interview was noncustodial, Miranda warnings were not required. Therefore, the district court denied the motion to suppress.
C.
Trial Evidence and Testimony
Appellant's case proceeded to a six-day jury trial, during which the Government called 17 witnesses, including Appellant's co-conspirators, and introduced around 270 exhibits. The evidence demonstrated that Appellant was the sole proprietor of the tax preparation company "40 AM Tax Service." Between January 2009 and March 2013, Appellant prepared and filed hundreds of individual income tax returns from her home office. Appellant filed tax returns with false information in order to generate larger refunds for her friends, family, and associates, and she used friends and associates to access stolen identities in whose names she filed fraudulent tax returns. Additionally, the Government presented evidence that Appellant's scheme resulted in over $780, 000 in fraudulent tax refunds wired to sixteen bank accounts opened in the name of 40 AM Tax Service.
1.
Testimony of Co-conspirators
Three co-conspirators -- Monique Montgomery, Tangaba Crosby, and Shante Brown -- testified against Appellant.
Montgomery testified that she was Appellant's friend and helped her with the tax scheme. She testified that Appellant paid her around $200, 000 to obtain the social security numbers ("SSNs") and dates of birth ("DOBs") of strangers, and that, after getting refunds using this information, Appellant would wire part of the money to Montgomery's personal bank accounts. According to Montgomery's testimony, Appellant also prepared Montgomery's tax returns and made sure she received refunds based on false information, such as a false claim that Montgomery cared for disabled children.
Crosby testified that Appellant paid her over $290, 000 for stolen SSNs and DOBs, which Crosby gathered from people at a methadone clinic and from a pastor who worked with prisoners. Like Montgomery, Crosby also testified that Appellant filed false tax returns for her, listing false information about her dependents and business income, resulting in large refunds.
Brown, Appellant's cousin, testified that Appellant prepared her tax returns using false dependent information and fictitious business losses. Appellant also paid Brown around $158, 000 for stolen SSNs and DOBs, some of which Brown obtained from her boyfriend who worked for a state government agency.
2.
Testimony of Agent Meisenheimer
At trial, Agent Meisenheimer testified about the interview he and Agent Schmidt conducted with Appellant. Following are some of the statements elicited from Appellant during her interview with Agent Meisenheimer and Agent Schmidt and disclosed to the jury during the testimony of Agent Meisenheimer: • "40 AM Tax Service" was Appellant's tax preparation business.
• Appellant had been preparing tax returns since 2005.
• Appellant did not have a...
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