United States v. Jeune
| Decision Date | 23 August 2021 |
| Docket Number | 19-14890,19-13018 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TAMARA JEUNE, a.k.a. Tamara Voltaire, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TAMARA JEUNE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Appeals from the United States District Court No. No 1:18-cr-20684-RNS-1, 1:18-cr-20684-RNS-1 for the Southern District of Florida
Before MARTIN, ROSENBAUM, and LUCK, Circuit Judges.
A jury convicted Defendant-Appellant Tamara Jeune of one count of conspiracy to defraud the government, in violation of 18 U.S.C. § 286, one count of filing false tax returns, in violation of 18 U.S.C. § 287, and three counts of assisting and advising in the preparation of false tax returns, in violation of 26 U.S.C. § 7206(2). Jeune now appeals her convictions, the $398, 021 in restitution to the Internal Revenue Service ("IRS") that the district court ordered, and her sentence of 180 months of imprisonment.
After careful review and with the benefit of oral argument, we conclude that the evidence supports Jeune's convictions and calculated restitution amount, so we affirm in part. But we find clear error in the district court's imposition of a two-point enhancement for obstruction of justice, so we vacate Jeune's sentence and remand for resentencing.
This appeal derives from conduct that occurred between January 19 2011, and October 3, 2016. But to put that conduct into context, we begin with background on Jeune's tax-preparation businesses, two of which are relevant to Jeune's appeal. We also review Jeune's 2009 tax-fraud conviction because the government used it in the presentation of its case at trial, and that fact underlies part of Jeune's claims on appeal.
We start by emphasizing that Jeune was not indicted in the present case for the conduct we discuss in this section. Nevertheless, because the district court authorized certain uses of and the government relied on the information we summarize below, and because Jeune's appellate challenges address that circumstance, we review Jeune's prior tax-preparation problems.
Since the early 2000s, Jeune has professionally prepared tax returns in South Florida. Her first tax-preparation business Accounting Advisors Group, operated out of Miami and Fort Pierce, Florida. In 2005, Accounting Advisors Group was behind the preparation of thirty falsified individual tax returns for the 2004 calendar year. On behalf of their unsuspecting clients, Jeune and her sister Dorothy prepared and submitted individual income-tax returns supported by W-2s with altered withholding amounts and by 1040s with falsified deductions for substantial expenses. They filed these documents to generate larger tax refunds.
In 2009, Jeune was indicted on thirty counts of willfully assisting in the preparation of false tax returns in violation of 26 U.S.C. § 7206(2). She pled guilty that same year to one count of the indictment for her willful assistance in the preparation and submission of an individual income-tax return that included a W-2 with falsified wage-withholding amounts. The district court in that case sentenced Jeune to 18 months in prison to be followed by one year of supervised release.
It also imposed special conditions on Jeune's year of supervised release. As relevant here, Jeune had to obtain prior written approval from the court before entering any self-employment, and she could not operate, act as a consultant, or be employed in any tax-preparation-services business. After serving a reduced prison sentence of nine months, Jeune was released from custody, and her term of supervised release ran from February 10, 2010, until February 9, 2011.
The present tax-fraud charges arose from Jeune's tax-preparation business, Investment Equity Development, Incorporated, and another business that occupied the same building, Jacob G. Jeune, Professional Association, named after Jeune's son. On September 4, 2007, Jeune incorporated Investment Equity as a professional-tax-preparation business located at 111 N.W. 183rd Street, Miami, Florida. She listed herself as its registered agent and vice president and opened a SunTrust bank account under Investment Equity's name. She also listed on at least three individual incometax returns that her occupation was "office manager" and "bookkeeper" and that Investment Equity was her employer and tax preparer.
At some point, Investment Equity became inactive because of its failure to timely file the proper paperwork with the State of Florida. But on May 6, 2009, Jeune filed paperwork to reinstate Investment Equity, listing the same mailing address and keeping her original titles as registered agent and vice president. Only this time, Jeune identified Nicole Jeune as the director of Investment Equity. Notably, Jeune reinstated Investment Equity just one week before she was sentenced for her 2009 tax-fraud conviction.
While Jeune was serving her sentence, the oddities at Investment Equity continued. At the time, Investment Equity paid for a commercial-tax-preparation program provided by Drake Software. Drake Software tracks the electronic transmission of tax returns by business, tax preparer, and electronic filing identification number ("EFIN"), which is necessary for business providers to be able to electronically file tax returns with the IRS. During the nine months Jeune was incarcerated, Drake recorded at least 67 tax returns filed by someone from Investment Equity using the EFIN 654945, a number Draft Software (incorrectly) associated with belonging to Jeune.
Drake Software also logs the calls that tax professionals make to its customer-support line. While Jeune was incarcerated, Drake Software's call logs indicate that 22 calls were made on behalf of Investment Equity by someone identifying as "Tamara" with the EFIN 654945. Adding further to the mystery, the EFIN 654945 actually belonged to Jeune's ex-husband, Louis Voltaire.
After Jeune completed her prison sentence, as we have mentioned, by the terms of her supervised release, she could not work at Investment Equity or any tax-preparation business during her one year supervised-release period, which ended on February 9, 2011. But Jeune faced another consequence of her 2009 tax-fraud conviction. As a recently convicted felon, she could not maintain or apply for an EFIN. That was so because an individual or person on behalf of a business must pass a criminal background check to obtain and maintain an EFIN and electronically file taxes with the IRS. In contrast, a preparer tax identification number ("PTIN"), which does not require a criminal background check, is used to identify individual professionals who prepare IRS tax returns or claims for refund. But EFIN holders are the only ones authorized to transmit tax returns through the IRS's electronic filing system.
So after her release from prison, Jeune could serve in only a limited capacity with Investment Equity. According to her 2011 tax return, she returned to Investment Equity as an "office manager" earning an annual salary of $67, 000.
About six months after Jeune's completion of her supervised-release period, trouble hit Investment Equity. In August 2011, the IRS began a civil audit of the firm for its delinquent business and corporate tax filings. The investigation originated in New York because Jeune's uncle, Lionnel Meronne, lived there and was listed as Investment Equity's president in its 2011 articles of incorporation. But Meronne informed the IRS that he did not prepare taxes or own Investment Equity located in Florida; his niece Jeune did.
So Florida-based IRS Auditor Ava-Marie Schmergel audited Investment Equity to verify the accuracy of business tax returns, collect money owed for tax liabilities, and impose any civil penalties. As Investment Equity's registered agent, Jeune initially responded on the company's behalf to the IRS's civil audit inquiries and request for documents.[2]
During a phone call with Schmergel, Jeune explained that she managed and ran Investment Equity's business, which prepared on average 200 tax returns per year. She stated that the business was a partnership in which she split ownership with her uncle Meronne. She also falsely claimed that she already provided the delinquent employment and income-tax returns to the IRS, but the IRS had proof that she had not.
Schmergel soon uncovered tax returns indicating that Jeune's ex-husband Voltaire worked as a tax preparer and obtained an EFIN to electronically file taxes at Investment Equity.[3] Schmergel spoke with Jeune and Voltaire by phone to ask about the daily operations of the business, such as how fees were charged, who prepared the tax returns, how returns were prepared, and the type of tax-preparation software used. Over the course of these conversations, the explanations about Voltaire's and Jeune's roles at Investment Equity were inconsistent and contradictory.
For instance, in January 2012, Voltaire spoke with Schmergel by phone and stated that he did not prepare any tax returns. A few days later, during another phone call, Voltaire changed his mind, claiming that he misunderstood Schmergel's initial questions and that he did in fact prepare tax returns at Investment Equity. When Schmergel followed up on his involvement, Voltaire could not answer basic questions, such as Investment Equity's physical address, the digits of the EFIN and PTIN assigned to his name, and the type of tax-preparation software he used.
Schmergel then met with Voltaire and Jeune at Investment Equity's...
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