United States v. Perry

• Decision Date: 06 May 2013
• Docket Number: No. 12–2444.,12–2444.
• Citation: 714 F.3d 570
• Parties: UNITED STATES of America, Plaintiff–Appellee v. John K. PERRY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

714 F.3d 570

UNITED STATES of America, Plaintiff–Appellee
v.
John K. PERRY, Defendant–Appellant.

No. 12–2444.

United States Court of Appeals,
Eighth Circuit.

Submitted: Jan. 18, 2013.
Filed: May 6, 2013.

[714 F.3d 573]

Timothy H. Dempsey, Sandusky, OH, for Appellant.

Reginald L. Harris, AUSA, Steven A. Muchnick, AUSA, St. Louis, MO, for Appellee.

Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.

LOKEN, Circuit Judge.

From 2001 through June 2004, John Perry was the Materials, Planning, and Logistics Manager at Ford Motor Company's Assembly Plant in Hazelwood, Missouri. His duties included approving invoices for payment to various vendors that provided logistical and transportation services. In 2011, Perry was charged with four counts of willful income tax evasion in violation of 26 U.S.C. § 7201 for failing to report and then concealing kickbacks received from Ford vendors during each of the 2001 through 2004 tax years. A jury convicted Perry on all counts after a six-day trial. Following a lengthy sentencing hearing, the district court ¹ overruled most of Perry's objections to the tax loss calculations contained in the Presentence Investigation Report (“PSR”) and sentenced him to 51 months in prison. Perry appeals his conviction, raising statute of limitations and suppression issues, and his sentence, arguing the district court erred in calculating tax loss, denying his request for a downward variance, and requiring that he pay $926,602.75 in restitution to the Internal Revenue Service (“IRS”) as a condition of supervised release. We affirm.

I. The Statute of Limitations Issue.

Tax evasion is defined in § 7201 as willfully attempting “in any manner to evade or defeat any tax imposed by this title or the payment thereof.” The elements of this felony offense “are willfulness; the existence of a tax deficiency; and an affirmative act constituting an evasion or attempted evasion of the tax.” Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965) (citations omitted). “[A]ny conduct, the likely effect of which would be to mislead or to conceal for tax evasion purposes, can constitute an affirmative act of evasion.” United States v. Schoppert, 362 F.3d 451, 460 (8th Cir.) (quotations omitted), cert. denied,543 U.S. 911, 125 S.Ct. 234, 160 L.Ed.2d 191 (2004); see United States v. Silkman, 156 F.3d 833, 835 (8th Cir.1998). Prosecution of this offense is subject to the six-year statute of limitations in 26 U.S.C. § 6531(2).

Perry was first indicted on March 24, 2011. Each count of the superseding indictment charged that he willfully attempted to evade taxes by preparing and filing a false and fraudulent federal income tax return for the year at issue, “and by making false statements to an IRS Special Agent” in August 2006. The district court instructed the jury, without objection, that (i) the methods of evasion charged in each count were filing false returns and making false statements to an IRS agent; (ii) the jury must find unanimously that the government proved at least one of the methods of evasion charged; and (iii) “at least one of the acts of evasion alleged in that count occurred after March 24, 2005.” ²

[714 F.3d 574]

On appeal, Perry argues the government introduced insufficient evidence that he lied when IRS Special Agent Juli Ricchio interviewed him on August 26, 2006, and therefore the counts charging willful attempts to evade taxes due for the 2001 through 2003 tax years were time-barred. Recounting that interview, Agent Ricchio testified that Perry disclaimed any involvement in a fraudulent invoice scheme at Ford and denied receiving cash payments or kickbacks from vendor Thomas Buske or his companies. The government introduced evidence that Buske paid Ford manager Perry substantial kickbacks in the form of cash and indirect payments for his role in various fraudulent schemes, including cash payments of $18,000 to $25,000 per month from 2001 to early 2004; purchase of a Jaguar and Lincoln Aviator for Perry and his then-wife, Tammy; and payments for a costly addition to Perry's home in Lake St. Louis and for Perry's purchase of two properties in Breckenridge, Colorado. The government also introduced handwritten ledgers, found in Perry's safe, that divided illicit profits from specific inflated invoices between Buske and Perry.

In addition to receiving kickbacks from Buske, the owners of a transportation logistics company testified that Perry forced them to pay him $10,000 to $20,000 per month to keep their contract with Ford, disguising the bribes as “consulting fees.” Perry failed to report these kickbacks and bribes as income on his tax returns for the 2001 through 2004 tax years. By convicting Perry on all four counts, the jury necessarily found that Perry lied to Agent Ricchio during the August 2006 interview in a continuing attempt to evade his income tax liabilities. After careful review of the trial record, we conclude there was more than sufficient evidence for a reasonable jury to find beyond a reasonable doubt, with respect to each count, that Perry committed an act of tax evasion within six years of the indictment.

II. Suppression Issues.

Based on information provided by an employee of Buske's company and by Perry's ex-wife, Tammy, Postal Inspector Michael Levinson applied for a warrant to search a residence in Vermillion, Ohio, where Perry moved after the divorce. The warrant issued and was executed on August 26, 2006. Agent Ricchio interviewed Perry at the residence while federal agents completed the warrant search. Prior to trial, Perry moved to suppress statements he made during that interview and evidence seized during the search. He now appeals the district court's denial of these motions following separate evidentiary hearings.

A. Perry first contends the district court erred in not suppressing, as involuntary, statements he made during Agent Ricchio's interview. “A statement is involuntary when it was extracted by threats, violence, or express or implied promises sufficient to overbear the defendant's will and critically impair his capacity for self-determination.” United States v. LeBrun, 363 F.3d 715, 724 (8th Cir.2004) (en banc) (quotations omitted), cert. denied,543 U.S. 1145, 125 S.Ct. 1292, 161 L.Ed.2d 105 (2005). We review the district court's fact findings for clear error and its legal conclusion that the statements were voluntary de novo. Id.

At the suppression hearing, Agent Ricchio testified that she interviewed Perry in the dining room after being told by another agent that Perry said he wanted a

[714 F.3d 575]

lawyer when he first answered the door. Agent Ricchio told Perry he was free to leave or stay during the warrant search and, when he chose to stay, that she would not question him because he wanted an attorney but would explain why the agents were there. She explained they were investigating fraud against Ford Motor Company, and they believed Perry had used his position at Ford to approve fraudulent invoices. Perry testified that he immediately told the agents he wanted an attorney when he first answered the door, then refused to talk to Agent Ricchio despite her repeated attempts to ask questions, and finally agreed to talk only after she told him that he was not the main target of their investigation. The district court found that Agent Ricchio truthfully advised Perry of the reason for the search and that he was a subject of their investigation. The court concluded that, even if Perry was told he was not a target, his “will was not overborne and any such representations would not be sufficient to require a suppression of [his] statements.”

On appeal, Perry argues his statements should have been suppressed because Agent Ricchio “was inaccurate, mistaken, wrong or untruthful ... at the motion hearing and then at trial.” The district court's finding that Agent Ricchio did not deceive Perry was an assessment of her credibility that was not clearly erroneous. In addition, we agree with the court's conclusion that any deception regarding whether Perry was a target of the investigation did not render his statements involuntary. See United States v. Brave Heart, 397 F.3d 1035, 1041 (8th Cir.2005); LeBrun, 363 F.3d at 724. Agent Ricchio did not make threats, display her weapon, raise her voice, or promise Perry he would not be arrested or prosecuted. Perry was an educated and sophisticated 50–year–old Ford manager who gave every indication he understood the nature of the investigation and Agent Ricchio's questions.

B. In a separate pretrial motion, Perry requested a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), alleging that Inspector Levinson's warrant affidavit contained materially false information. In support, Perry submitted an affidavit...