United States v. Toto-Ngosso , 407 F. App'x 687 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5153
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARCEL J. TOTO-NGOSSO,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:08-
cr-00179-RWT-1)
Submitted: December 22, 2010 Decided: January 14, 2011
Before WILKINSON and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Robert C. Bonsib, Megan E. Green, MARCUSBONSIB, LLC, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, John A. DiCicco, Acting Assistant Attorney General,
Alan Hechtkopf, Gregory Victor Davis, Alexander P. Robbins,
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marcel J. Toto-Ngosso (“Toto”) appeals his jury
conviction on seventeen counts of willfully aiding and assisting
in the preparation and presentation of false income tax returns,
in violation of 26 U.S.C. § 7206(2) (2006), and seventy-month
prison sentence. On appeal, Toto argues that the district court
abused its discretion in admitting evidence, under Fed. R. Evid.
404(b), in the form of testimony from two witnesses concerning
his preparation of income tax returns not charged in the
indictment and erred in the calculation of his Guidelines
sentence, see U.S. Sentencing Guidelines Manual (“USSG”) (2008).
We affirm.
Rule 404(b) states that “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith.”
Fed. R. Evid. 404(b). Such evidence “may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Id. To be admissible under
Rule 404(b), evidence must be “(1) relevant to an issue other
than character; (2) necessary; and (3) reliable.” United States
v. Siegel, 536 F.3d 306, 317 (4th Cir. 2008) (internal quotation
marks omitted). “Evidence sought to be admitted under Rule
404(b) must also satisfy [Fed. R. Evid.] 403[.]” Id. at 319.
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Under Rule 403, “damage to a defendant's case is not a basis for
excluding probative evidence” because “[e]vidence that is highly
probative invariably will be prejudicial to the defense.”
United States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998).
At trial, the Government presented testimony to show
that Toto was a tax preparer who prepared federal income tax
returns for clients at his Maryland residences. Six of Toto’s
clients whose tax returns were the subjects of the indictment
testified, and their testimony showed that the returns Toto
prepared for them contained numerous falsities, including false
dependents and other qualifying persons and exaggerated or
wholly fabricated deductions and expenses. Additionally, over
Toto’s objection, the district court admitted testimony from two
additional clients of Toto’s that the income tax returns he
prepared for them also contained false dependents, deductions,
and expenses.
Toto claims that, because the Government presented
testimony pertaining to each of the seventeen tax returns that
were charged in the indictment, admission of the testimony
concerning returns not charged in the indictment was
unnecessary. For purposes of Rule 404(b), evidence is necessary
where, “considered in the light of other evidence available to
the government, it is an essential part of the crimes on trial,
or where it furnishes part of the context of the crime.” United
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States v. Queen, 132 F.3d 991, 998 (4th Cir. 1997) (internal
quotation marks and citation omitted). The statute under which
Toto was convicted proscribes a person from willfully assisting
in the preparation or presentation of false tax returns. See 26
U.S.C. § 7206(2). A tax violation is willful if it is “a
voluntary, intentional violation of a known legal duty,” and the
Government can establish a willful violation without proving
“any motive other than an intentional violation of” that duty.
United States v. Pomponio, 429 U.S. 10, 12 (1976) (per curiam).
Evidence that Toto had prepared several additional returns
containing false deductions and adjustments was highly probative
on the issue of whether his preparation of the false returns
charged in the indictment was done knowingly or without mistake
and thus significantly aided the Government in meeting its
burden to show that Toto acted willfully.
Toto suggests that the evidence of his involvement in
preparing the other returns was not critical to the Government’s
case. However, the fact that the evidence was not critical to
the Government’s case “does not render it unnecessary for
purposes of Rule 404(b).” United States v. Rooks, 596 F.3d 204,
211 (4th Cir.), cert. denied, 131 S. Ct. 148 (2010). This is so
because the “necessary” prong “focuses on whether the evidence
is necessary in the sense that it is probative of an essential
claim or an element of the offense.” Id. at 211-12 (internal
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quotation marks omitted). Whether Toto willfully aided in the
preparation and presentation of the seventeen returns was an
issue at trial, and evidence of Toto’s preparation of other
false returns provided context for the preparation of the
seventeen returns charged in the indictment. Accordingly, the
evidence was “necessary.”
Toto further suggests that the admission of the
testimony concerning his preparation of the tax returns not
charged in the indictment did not satisfy Rule 403. Although
this testimony was damaging to Toto, we conclude it was not
unfairly prejudicial, as Toto has not shown there existed “a
genuine risk that the emotions of [the] jury [were] excited to
irrational behavior, and that this risk [wa]s disproportionate
to the probative value of” the testimony, United States v.
Aramony, 88 F.3d 1369, 1378 (4th Cir. 1996) (internal quotation
marks omitted). Moreover, the district court reduced the risk
of unfair prejudice by giving limiting instructions to the jury,
explaining that the jury could consider the evidence only in
determining Toto’s knowledge and intent. See Queen, 132 F.3d at
997. Accordingly, we conclude that the district court did not
abuse its discretion in admitting the challenged evidence.
See United States v. Benkahla, 530 F.3d 300, 309 (4th Cir. 2008)
(stating standard of review).
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Toto also challenges his seventy-month prison
sentence, asserting that the district court erred in the
calculation of his Guidelines sentence by erroneously overruling
his objections and: (1) calculating the tax loss amount and
resulting base offense level under USSG § 2T1.1; (2) applying
the two-level enhancement under USSG § 2T1.4(b)(2) for his use
of sophisticated means; and (3) applying the three-level
enhancement under USSG § 3B1.1(b) for his role in the offense.
We review Toto’s sentence for reasonableness “under a
deferential abuse-of-discretion” standard. Gall v. United
States, 552 U.S. 38, 41, 51 (2007). In conducting this review,
we must ensure that the district court correctly calculated
Toto’s Guidelines sentence. Id. at 49, 51.
Under the Guidelines, the tax loss attributable to a
defendant involved in aiding in the preparation and presentation
of false tax returns is “the tax loss, as defined in [USSG]
§ 2T1.1, resulting from the defendant’s aid, assistance,
procurance or advice.” USSG § 2T1.4(a). Under USSG
§ 2T1.1(c)(1), the tax loss is the “total amount of loss that
was the object of the offense (i.e., the loss that would have
resulted had the offense been successfully completed).” This
amount includes “all conduct violating the tax laws . . . unless
the evidence demonstrates that the conduct is clearly unrelated”
to the offense. Id., cmt. n.2.
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In calculating the tax loss amount, “a district court
may consider relevant information without regard to its
admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of
reliability to support its probable accuracy.” United States v.
Mehta, 594 F.3d 277, 282 (4th Cir.), cert. denied, 131 S. Ct.
279 (2010) (internal quotation marks omitted). Additionally,
because the amount of tax loss “is not always a precise figure,”
the Guidelines “contemplate that the [district] court
will . . . make a reasonable estimate based on the available
facts.” Id. (internal quotation marks omitted). We review the
district court’s determination of the tax loss amount for clear
error. See United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007).
The testimony at trial established that Toto’s
practice of listing false deductions, qualifying persons,
dependents, and adjustments (collectively, “deductions”) on the
returns of his clients resulted in a tax loss to the Government
of $117,711. According to the presentence report, Toto’s
practice of listing these false deductions on the returns of
several of his clients who did not testify at trial resulted in
an additional loss to the Government of $98,785. At sentencing,
an Internal Revenue Service (“IRS”) agent testified that, in
calculating this additional loss amount, she reviewed memoranda
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of interviews with a number of Toto’s clients who did not
testify at trial. The agent adjusted the returns filed for
these clients, eliminating the false deductions that Toto had
included on their returns. Based on these adjustments, the
agent recalculated each client’s amount of tax due and owing and
thereby determined the additional tax loss amount resulting from
Toto’s conduct. The district court adopted the presentence
report, credited the agent’s testimony, and found that the tax
loss amount attributable to Toto “exceeded $200,000,” resulting
in a base offense level of 18, see USSG §§ 2T1.4(a)(1),
2T4.1(G).
Toto claims that, because the clients whose interviews
were the subjects of the memoranda were not cross-examined, the
evidence the Government proffered at sentencing to establish
that the tax loss amount exceeded $200,000 was unreliable. We
disagree. The false deductions listed on the returns of the
clients who did not testify at trial fit the pattern of the
fraudulent conduct established at trial, and the $98,785 loss
amount was based on statements made by the clients themselves
establishing the falsity of the deductions Toto had claimed on
their returns. We conclude this was an acceptable method for
the district court to use in making a reasonable estimate of the
loss amount under the Guidelines. See Mehta, 594 F.3d at 282-83(approving calculation of tax loss amount from IRS assessments
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that taxpayer-clients of the defendant elected not to contest,
even though they never “substantively agree[d]” with those
assessments and where the fraudulent deductions on the
taxpayers’ returns fit the pattern of fraud shown at trial). We
therefore conclude that the district court did not commit clear
error in calculating the tax loss amount.
We turn next to Toto’s challenge to the district
court’s application of the two-level enhancement under USSG
§ 2T1.4(b)(2) for his use of sophisticated means. “The average
criminal tax fraud . . . involves some concealment;
‘sophisticated’ tax fraud [meriting application of the two-level
enhancement under USSG § 2T1.4(b)(2)]. . . require[s] more.”
United States v. Kontny, 238 F.3d 815, 820-21 (7th Cir. 2001).
“Sophistication,” however, does not refer to “the style of the
[defendant]—the degree to which he approximates Cary Grant—but
to the presence of efforts at concealment that go beyond (not
necessarily far beyond . . . ) the concealment inherent in tax
fraud.” Id. at 821 (internal quotation marks omitted).
“Conduct such as hiding assets or transactions, or
both, through the use of fictitious entities, corporate shells,
or offshore financial accounts ordinarily indicates
sophisticated means.” USSG § 2T1.4, cmt. n.3. But these are
offered as examples only; the “essence of the definition is
merely deliberate steps taken to make the offense difficult to
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detect.” Kontny, 238 F.3d at 821 (internal quotation marks and
ellipsis omitted). We review the district court’s determination
that Toto used sophisticated means for clear error. See id.The district court adopted the presentence report’s
recommendation to apply the enhancement under USSG § 2T1.4(b)(2)
based on Toto’s: (1) use of an IRS-issued electronic filing
number registered to another entity to file his clients’
returns; (2) use of bank accounts held in the names of others to
deposit his return preparation fees; and (3) failure to report
to the IRS the income he made as a tax preparer. In Toto’s
view, the district court’s application of the enhancement was
error because his placement of false deductions on returns that
were filed under the electronic filing number of another
required “no particular knowledge or sophistication.”
We disagree, because Toto’s conduct shows he took
deliberate steps to conceal from the IRS his connection to the
fraudulent returns he filed on behalf of his clients. By
utilizing the electronic filing number registered to another
entity, Toto could omit his name and signature from the returns
and associated forms, thus perpetuating the fiction that he was
not the preparer of those returns. Additionally, Toto utilized
bank accounts held in the names of others to mask the income he
generated by preparing the false returns. These efforts, when
combined with Toto’s failure to file personal income tax returns
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disclosing the income he generated as a tax preparer, undeniably
made IRS detection of his connection to the false returns more
difficult. Accordingly, the district court’s application of the
two-level enhancement for Toto’s use of sophisticated means was
not clearly erroneous.
Finally, Toto claims that the district court erred in
applying the three-level enhancement under USSG § 3B1.1(b) for
his role in the offense. However, because Toto fails to support
his claim in accordance with Fed. R. App. P. 28(a)(9)(A) (“[T]he
[appellant’s] argument . . . must contain . . . appellant's
contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant
relies.”), we deem it abandoned. See Wahi v. Charleston Area
Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir. 2009), cert.
denied, 130 S. Ct. 1140 (2010); Edwards v. City of Goldsboro,
178 F.3d 231, 241 n.6 (4th Cir. 1999).
We therefore affirm the district court’s amended
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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