United States v. Paul F. Wrubleski , 707 F. App'x 650 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-12293
Non-Argument Calendar
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D.C. Docket No. 0:12-cr-60297-DTKH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL F. WRUBLESKI,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 6, 2017)
Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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A trial jury convicted Paul F. Wrubleski of charges related to tax fraud and
tax evasion. He appeals a number of the district court’s trial rulings. After careful
review, we affirm his conviction.
I.
In 2012, a federal grand jury indicted Wrubleski, charging him with one
count of attempting to interfere with the administration of the Internal Revenue
laws, in violation of 26 U.S.C. § 7212(a), and four counts of filing false, fictitious,
and fraudulent claims with the Internal Revenue Service, in violation of 18 U.S.C.
§ 287. The indictment charged Wrubleski with filing false income tax returns and
knowingly making false claims for tax refunds. Wrubleski pled not guilty and
went to trial.
At trial, the government called Ken Hochman, an attorney at the IRS, as one
of its witnesses. Hochman testified that he represented the IRS in United States
Tax Court, including in a case filed by Wrubleski in 2004 in which Wrubleski
challenged the validity of an IRS collection action. Outside the presence of the
jury, the district court expressed concern about Hochman’s testimony. The court
said it was “concerned that [] the government is attempting to take a taxpayer’s
participation in [the IRS] review process . . . as activity that can be looked at for
the basis of a criminal charge” because “the government thinks the taxpayer was so
baseless” in bringing the Tax Court action. The government explained that
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although Wrubleski’s litigation in Tax Court could not itself constitute the crime of
interference with the administration of the Internal Revenue laws, Wrubleksi’s
previous experience in Tax Court showed his “overall willfulness” to commit other
acts that constitute the crime.
When the jury returned, the district court gave a curative instruction. The
court said:
I want to be clear that the fact that [Wrubleski] went to tax court, and
the fact that, for instance, the government may not be happy with how
[he] acted in the tax court . . . that can’t be the basis of a charge of
corruptly trying to impede the proper administration of the Internal
Revenue Service.
If you tell somebody they can take an appeal [to the Tax Court] and
they take an appeal and they lose the appeal, that’s not the basis of the
charge here.
The court then explained that information about Wrubleski’s Tax Court litigation
was “relevant only to the question of whether the government can prove that Mr.
Wrubleski acted willfully.” Before resuming Hochman’s testimony, the court
reiterated: “I want to make sure that everybody understands that how Mr.
Wrubleski conducted himself in the litigation, that cannot serve as the basis for the
first charge, which is the charge of corruptly impeding the administration of
justice.” Despite the court’s instruction, Wrubleski moved for a mistrial on the
ground that his “use of judicial process . . . has been portrayed as being something
improperly done toward the IRS.” The district court denied his motion.
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Later in the trial, the government called Special Agent Jason Lamb to the
stand. Lamb, an agent in the IRS’s criminal division, testified about a handwritten
note that IRS agents found while searching the office of Wrubleski’s tax preparer,
Teresa Marty. The note said: “Cease and desist in all aggravation of officials.
Why ruffle when you can be subtle.” The note also said, “MC-2 income wages, do
not include[].” 1 Over Wrubleski’s objection, the district court admitted the note
into evidence under the co-conspirator exception to the hearsay rule.
The government also called Special Agent Robert Calabrese, the lead IRS
agent on Wrubleski’s case. Calabrese explained that Wrubleski filed false tax
returns in which he claimed tax refunds to which he was not entitled. Calabrese
then testified about a number of Wrubleski’s bank, credit card, and mortgage
records. He explained the IRS obtained these records in the course of its
investigation so that it could compare them to the income and financial information
Wrubleski had been reporting on his income tax returns. Wrubleski objected to
the financial records on the ground that the certifications for each record were
insufficient because they were photocopies, not originals. Wrubleski made clear
that his objection did not go to the contents of the records or their certifications,
but to the fact that the certifications were not originals. The court overruled that
objection and admitted the bank, credit card, and mortgage records.
1
Other testimony at trial established that MC-2 was one of Wrubleski’s former
employers.
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After the parties rested, the district court gave the jury instructions. While
explaining the burden of proof in a criminal case, the court said:
[E]very defendant is presumed by the law to be innocent. The law
does not require a defendant to prove his innocence or to produce any
evidence at all. Remember, ladies and gentlemen, it is the
government that has the burden of proving a defendant [guilty]
beyond a reasonable doubt. If the defendant fails to do that, you must
find the defendant not guilty.
(Emphasis added.) Wrubleski objected to this last sentence, and the district court
continued its instructions. The court then said: “[T]he burden in this case is simply
100 percent on the shoulders of the government. Zero percent on the shoulders of
the defendant.”
The jury found Wrubleski guilty on all five counts. The district court
sentenced Wrubleski to 36-months imprisonment for Count 1 and 55-months
imprisonment for each of Counts 2 through 5, all to be served concurrently.
II.
Wrubleski raises four claims on appeal. First, he says the district court erred
by admitting the handwritten note from the office of his tax preparer. Second, he
says the district court erred in denying his motion for a mistrial based on the
testimony about his Tax Court litigation. Third, he says the district court erred in
admitting his financial records because the certifications were copies of the
originals. Fourth, he says the district court erred in its oral jury instruction on the
burden of proof. We address each argument in turn.
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A.
Wrubleski first argues the district court erred by admitting into evidence the
handwritten note from his tax preparer, Teresa Marty, under Rule 801(d)(2)(E) of
the Federal Rules of Evidence. We review the district court’s ruling on the
admission of evidence for an abuse of discretion. United States v. Jiminez, 224
F.3d 1243, 1249 (11th Cir. 2000).
Under Rule 801(d)(2)(E), statements of co-conspirators made “during the
course and in furtherance of the conspiracy are not hearsay.” United States v.
Miles, 290 F.3d 1341, 1351 (11th Cir. 2002) (per curiam). In order for a statement
to be admissible under Rule 801(d)(2)(E), “the government must prove by a
preponderance of the evidence: (1) that a conspiracy existed; (2) that the
conspiracy included the declarant and the defendant against whom the statement is
offered; and (3) that the statement was made during the course and in furtherance
of the conspiracy.” Id.
The district court did not abuse its discretion in finding the government
proved the elements of this conspiracy by a preponderance of the evidence. The
evidence showed that Marty prepared Wrubleski’s 2007 income tax return, which
fraudulently claimed a $500,000 tax refund. The evidence also showed that Marty
and Wrubleski communicated about his tax filings and that Wrubleski paid Marty
for preparing the false return. This is sufficient to establish a conspiracy between
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Wrubleski and Marty to file a false claim with the IRS. See United States v.
Cagnina, 697 F.2d 915, 922 (11th Cir. 1983) (“Co-conspirators’ statements are
admissible even when no conspiracy is charged if there is independent evidence of
a concert of action in which the defendant was a participant.”). The evidence also
established that the statement was made “in furtherance of the conspiracy.” See
Miles, 290 F.3d at 1351. Agents discovered the note in Marty’s office, in a file
that was marked with Wrubleski’s name and that contained a copy of the
fraudulent 2007 tax return. Beyond that, the message on the note—which
discussed not “aggravat[ing] officials” and “not includ[ing]” Wrubleski’s wages
from his job at MC-2—appears to be a plan for accomplishing the tax fraud.
Therefore, it was not an abuse of discretion for the district court to conclude that
the note was a statement made between co-conspirators, admissible under Rule
801(d)(2)(E).
B.
Next, Wrubleski challenges the district court’s decision not to grant a
mistrial after admitting evidence about Wrubleski’s litigation against the IRS in
Tax Court. We review a district court’s denial of a mistrial for an abuse of
discretion. United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007) (per
curiam).
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Wrubleski appears to argue that using a defendant’s previous legal
proceedings against the IRS to prove the offense of interfering with the
administration of the Internal Revenue laws, 26 U.S.C. § 7212(a), is an improper
“theory of culpability.” He says the evidence of his Tax Court proceedings
showed only that “[h]e took advantage of the legal avenues offered to him,” and
did not prove he was “corruptly trying to obstruct or impede the IRS.”
Even assuming it was error to admit the evidence of Wrubleski’s litigation
history—a question we need not decide—the admission of this evidence did not
mandate a mistrial here because the court gave an adequate curative instruction.
The district court agreed with Wrubleski that a person’s litigation in Tax Court
could not constitute a violation of § 7212(a). As we described above, this
prompted the district court to give an extensive curative instruction. The court
instructed the jury that any actions Wrubleski filed in Tax Court “can’t be the basis
of a charge of corruptly trying to impede the proper administration of the Internal
Revenue Service. . . . [H]ow Mr. Wrubleski conducted himself in the litigation,
that cannot serve as the basis for the first charge, which is the charge of corruptly
impeding the administration of justice.” “When a curative instruction is given, this
court reverses only if the evidence is so highly prejudicial as to be incurable by the
trial court’s admonition.” United States v. Garcia, 405 F.3d 1260, 1272 (11th Cir.
2005) (per curiam) (quotation omitted). Here, the evidence that Wrubleski
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challenged his tax liability in Tax Court was not so prejudicial as to be beyond the
cure offered by the district court’s prompt and thorough instruction. Because the
district court cured the error Wrubleski complains of, the court did not abuse its
discretion in denying his motion for a mistrial. See Newsome, 475 F.3d at 1227.
C.
Wrubleski next claims that the district court erred by admitting his bank,
credit card, and mortgage records without original certifications from the custodian
of each record. We reject this argument.
The records Wrubleski challenges were admitted under Federal Rule of
Evidence 803(6), the business records exception to the rule against hearsay. A
document is admissible under Rule 803(6) if (1) it was “made at or near the time
by . . . someone with knowledge”; (2) it was “kept in the course of a regularly
conducted activity”; and (3) “making the record was a regular practice of that
activity.” Fed. R. Evid. 803(6)(A)–(C). The rule says these requirements can be
“shown by the testimony of the custodian or another qualified witness, or by a
certification that complies with Rule 902(11).” Id. 803(6)(D). Here, the
government used Rule 902(11) certifications for each of the business records.
Under Rule 902(11), a party may use a written “certification of the custodian” of
the record to meet the requirements of Rule 803(6)(A)–(C). Id. 902(11).
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Wrubleski objects to the admission of the business records only on the
ground that the certifications the government offered were photocopies of the
original certifications and “original certifications were never produced.” However,
nothing in Rule 902(11) requires that the certification be the original, as opposed to
a photocopy. Wrubleski points to no authority to support his interpretation that the
rule imposes such a requirement. Under the Federal Rules of Evidence, “[a]
duplicate is admissible to the same extent as the original unless a genuine question
is raised about the original’s authenticity or the circumstances make it unfair to
admit the duplicate.” Id. 1003. Wrubleski has offered nothing that would call into
question the authenticity of the original certifications or make it unfair to admit the
photocopied certifications. This record discloses nothing indicating an abuse of
discretion by the district court in its admission of the business records. See
Jiminez, 224 F.3d at 1249.
D.
Finally, Wrubleski says the district court made “an incorrect statement of the
law” during its “oral instructions” to the jury on the burden of proof. “We review
jury instructions de novo to determine whether they misstate the law or mislead the
jury.” Gowski v. Peake, 682 F.3d 1299, 1310 (11th Cir. 2012) (per curiam).
While giving oral instructions to the jury, the district court said: “If the
defendant fails to do that [i.e., prove guilt beyond a reasonable doubt], you must
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find the defendant not guilty.” Clearly, this misstated the burden of proof. Yet it is
equally clear that the district court simply misspoke. Just before it made the
misstatement, the court recited the burden of proof correctly. And, after Wrubleski
objected to the incorrect statement, the district court promptly corrected itself,
clarifying that “the burden in this case is simply 100 percent on the shoulders of
the government. Zero percent on the shoulders of the defendant.” Further, the
written instructions the jury received correctly stated, in multiple places, that the
government bears the burden of proving the defendant guilty beyond a reasonable
doubt. Taken as a whole, the instructions made clear that the government, and
only the government, bore the burden of proving Wrubleski’s guilt. See United
States v. Brown, 43 F.3d 618, 623 (11th Cir. 1995) (“We review jury instructions
by determining whether the charge, viewed as a whole, sufficiently instructed the
jurors so that they understood the issues involved and were not misled about the
law.”). On this record, we are confident the jury was not misled about the burden
of proof.
AFFIRMED.
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