United States v. Jirak

• Decision Date: 02 October 2013
• Docket Number: No. 12–3436.,12–3436.
• Citation: 728 F.3d 806
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Gene JIRAK, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

728 F.3d 806

UNITED STATES of America, Plaintiff–Appellee

v.Gene JIRAK, Defendant–Appellant.

No. 12–3436.

United States Court of Appeals,

Eighth Circuit.

Submitted: May 17, 2013.

Filed: Aug. 28, 2013.

Rehearing and Rehearing En Banc Denied Oct. 2, 2013.^*

Max Samuel Wolson, FPD, argued, Sioux City, IA (JoAnne M. Lilledahl, AFPD, Cedar Rapids, IA, on the brief), for Appellant.

Charles J. Williams, AUSA, argued, Cedar Rapids, IA (Teresa Baumann, USA, Cedar Rapids, IA, on the brief) for Appellee.

Before SHEPHERD, BEAM, and MELLOY, Circuit Judges.

BEAM, Circuit Judge.

Gene Jirak was convicted on five counts: (1) making a false claim for a tax refund on January 9, 2009; (2) making a false claim for a tax refund on March 27, 2009; (3) uttering a forged treasury check on March 9, 2009; (4) mail fraud in January 2009; and (5) aggravated identity theft on January 9, 2009. He appeals his conviction on multiple grounds. Having jurisdiction under 28 U.S.C. § 1291, we affirm the district court ¹ on the substantive matters, but remand with instructions that the district court modify its written judgment to conform to its oral pronouncement of the special condition of supervised release.

I. BACKGROUND

During the time relevant to this action, from 2005 to 2009, Jirak resided in Winneshiek County, Iowa, and was employed as a factory worker, earning between $32,000 and $35,000 per year. Jirak was married to Jean Jirak, now known as Jean Kingery (“Kingery”), until the two separated in November 2008, and divorced in July 2009. Together the couple's income amounted to approximately $42,000 per year. Between 2006 and 2008, they prepared joint tax returns using a tax preparer, Wayne Miller. On the Jirak's 2005, 2006 and 2007 tax returns, the couple did not report having earned taxable income from investments with financial institutions, nor did they claim financial institutions withheld any income tax on their behalf.

On January 9, 2009, Jirak filed a Form 1040X ² to amend the 2005 federal joint tax return (“amended 2005 return” or “2005 amendment”). The amended 2005 return appeared to be filed on behalf of Jirak and Kingery, as the return contained Kingery's name, social security number and her forged signature. Five 1099–OID Forms ³ were attached to the amended 2005 return, purportedly issued by four separate financial institutions, indicating that each of the named financial institutions withheld income tax due on various investments owned by or financial obligations owed by Jirak. Based on these five forms, Jirak claimed a refund in the amount of $56,999. Jirak did not file a similar amendment with the State of Iowa. Kingery did not have knowledge of the 2005 amendment and testified that she did not give Jirak permission to use her name, social security number or signature.

On March 6, 2009, the Internal Revenue Service (“IRS”), failing to recognize the nature of Jirak's return, issued a refund check in the amount of $69,139.07 (the amount of the requested refund plus interest). Upon receiving the check, Jirak forged Kingery's signature and, on March 10, 2009, deposited it in a joint savings account at Viking State Bank and Trust (“VSB”). VSB placed a hold on the check, despite Jirak's protest.

In March 2009, Kingery received a letter from the IRS alerting her to the 2005 amendment. Kingery called Jirak and inquired about the refund, to which he responded it was none of her business and it did not concern her. Kingery also called the Marine Credit Union, where she knew Jirak held an account, and requested that, if Jirak deposited a refund check with her signature, it should not be cashed because she did not sign the instrument. Kingery, again, phoned Jirak, who, at this point, admitted he had already signed the check and deposited it at VSB. Kingery confirmed with a VSB employee that Jirak deposited a treasury check, and after viewing the check, Kingery signed an affidavit indicating that she did not sign it. VSB did not deposit the check to Jirak's account and returned it to the IRS.

As a result of Kingery's phone call with Marine Credit Union, Marine Credit later informed Kingery that Jirak attempted to deposit a State of Iowa tax refund check, made payable to Kingery. The state check, from the 2007 tax year, was automatically issued as a federal offset, unrelated to the 2005 amendment, and was sent to Kingery's former address where Jirak was living in March 2009. After reviewing the check, Kingery signed an affidavit confirming that her signature was forged.

As these events transpired, on February 14, 2009, Jirak met with Miller to prepare his 2008 tax return. Jirak's W–2 Form indicated his income was $34,878 and, during this meeting, Jirak did not provide Miller with any 1099–OID Forms, nor did he indicate any other taxable income. Miller prepared and signed a federal tax return that stated Jirak owed approximately $1,150 in taxes and a state return that showed Jirak would receive a small refund. Jirak left Miller's office with the fully executed state and federal returns, ready to be mailed.

On March 27, 2009, Jirak electronically filed his 2008 federal taxes. Miller testified that the paperwork filed was not the federal return he prepared. The 2008 tax return claimed three financial institutions withheld income tax due on Jirak's alleged investments. Jirak reported his taxable interest was $72,289, and his reported wages amounted to $34,878, entitling Jirak to a $53,787 refund. Jirak did not claim the same on his 2008 state tax return, and filed the state return prepared by Miller. After being alerted of the nature of Jirak's 2005 amended return, the IRS did not issue a 2008 refund.

On January 23, 2012, following Jirak's indictment, his counsel filed a motion seeking to determine Jirak's competency, which the court granted. But, due to Jirak's lack of cooperation, the doctor was unable to offer a conclusion. Then, on February 21, 2012, the government also requested a competency evaluation and the evaluator concluded Jirak had average intellectual functioning, with no mental disease or defect that rendered him unable to understand that nature and consequences of his trial. Jirak filed numerous pro se motions during the pretrial stage of his case. Specifically, on May 1, 2012, Jirak filed a motion to dismiss his appointed counsel, which the court granted on May 15, 2012. However, the court-appointed counsel continued as standby counsel during the pendency of the case.

Trial was scheduled to begin on June 18, 2012. On that day, during a pretrial conference, Jirak notified the district court that he wanted standby counsel to represent him at trial. The court continued the case until the next day and appointed counsel as Jirak requested. The jury found Jirak guilty on all counts. On July 5, 2012, Jirak filed a motion for judgment of acquittal, asserting that the government failed to present sufficient evidence to establish the elements of the crimes charged, which the court denied. On July 27, 2012, Jirak again requested the district court terminate his counsel. The court granted his motion and, again, counsel continued in a standby capacity. On October 11, 2012, the court sentenced Jirak, proceeding pro se, to a 45–month term of imprisonment and a three-year term of supervised release. Now represented by appointed counsel, Jirak appeals.

II. DISCUSSIONA. Sufficiency of the Evidence

Jirak challenges the sufficiency of the evidence as to all counts of his conviction. We review the sufficiency of the evidence de novo, construing the evidence in the light most favorable to the verdict and will only overturn the conviction if no reasonable jury could find Jirak guilty beyond a reasonable doubt. United States v. Quevedo, 654 F.3d 819, 822 (8th Cir.2011). First, Jirak asserts that the government did not offer sufficient evidence to prove he made a false claim on January 9, 2009, and on March 27, 2009, in violation of 18 U.S.C. § 287 (counts one and two). To prove such a violation, the government must show, as the jury was instructed, that (1) Jirak made and presented to the United States Treasury Department and the IRS a claim against the United States; (2) the claim was false, fictitious or fraudulent; (3) Jirak knew the claim was false, fictitious or fraudulent; and (4) that the claim was material to the United States Treasury Department and the IRS. United States v. Refert, 519 F.3d 752, 757 (8th Cir.2008); see also18 U.S.C. § 287; Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit § 6.18.287 (2013). The jury instructions also explained:

A claim is “false” or “fictitious” if any part of it is untrue when made, and then known to be untrue by the person making it or causing it to be made. A claim is “fraudulent” if any part of it is known to be untrue, and made or caused to be made with the intent to deceive the governmental agency to which it is submitted.

Jury Instruction No. 13.

The evidence indicates that Jirak presented two false, fictitious, or fraudulent claims against the IRS. Testimony from representatives of the financial institutions listed on the OID Forms indicated that Jirak did not have any interest-earning accounts at those institutions; none of the financial institutions withheld the amounts indicated on the forms; and none of the institutions prepared the OID Forms. Thus, there was sufficient evidence for a reasonable jury to find the first two elements of the § 287 claims.

Jirak focuses his argument on appeal concerning counts one and two on the third element, whether he knew the claims were false, fictitious, or fraudulent. Knowledge may be shown by circumstantial evidence alone and it turns, in large part, on the credibility of the witnesses, which is “peculiarly within the province of the factfinder.” United States v. Erdman, 953 F.2d 387, 390 (8th Cir.1992). The record supports the jury's finding that Jirak knew the claims made on the 2005 amendment and the...