United States v. James Zander , 624 F. App'x 563 ( 2015 )


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  •                                                                           FILED
    NOT FOR PUBLICATION
    DEC 14 2015
    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                       No. 14-30178
    Plaintiff - Appellee,             D.C. No. 4:13-cr-00081-BMM-1
    v.
    MEMORANDUM*
    JAMES ZANDER,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the District of Montana
    Brian M. Morris, District Judge, Presiding
    Submitted December 9, 2015**
    Seattle, Washington
    Before: HAWKINS, McKEOWN, and TALLMAN, Circuit Judges.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    Appellant James Zander (“Zander”) was sentenced to forty months in prison
    and two years of supervised release following his guilty plea to a single count of tax
    evasion. We have jurisdiction under 
    28 U.S.C. § 1291
    , and we affirm.1
    Zander is a retired dentist who concluded he was not obligated to pay federal
    income taxes. From 2001 to 2009, he filed returns listing zero income, or filed no
    returns at all.
    The Pre-Sentence Report (“PSR”) concluded Zander owed over $1 million in
    unpaid taxes, producing a baseline offense level of 22 under the 2013 Sentencing
    Guidelines. U.S.S.G. §§ 2T1.1, 2T4.1(I). It added two points for “sophisticated
    means” and subtracted three for acceptance of responsibility, to reach an offense level
    1
    Zander also lodges two requests for judicial notice on appeal. Federal Rule
    of Evidence 201(b) affords courts discretion to judicially notice facts “not subject to
    reasonable dispute” either because they are “generally known within the trial court’s
    territorial jurisdiction,” or can easily be determined “from sources whose accuracy
    cannot reasonably be questioned.” He first requests judicial notice of a 2001 Tax Rate
    Schedule form including his annotated calculations for that year, and an article by the
    American Institute of Certified Public Accountants on “Determining the Taxability
    of S Corporation Distributions: Part 1.” Because Zander’s own annotations and the
    contents of the article concern factual issues not generally known in the District of
    Montana and whose accuracy may reasonably be questioned, this request is denied.
    While the 2001 IRS instructions for Schedules K-1 and E underlying Zander’s second
    request are appropriate for judicial notice, they are not relevant to his appeal because
    the deductions he claims they support were not raised below. We thus decline to take
    judicial notice of any of these items. A decision to the contrary would not, in any
    event, affect the outcome of this disposition.
    2
    of 21. With no prior criminal history points, the PSR computed a guideline sentence
    range of 37-46 months.
    At sentencing, Zander argued evidence from the Internal Revenue Service
    (“IRS”) was unreliable. The district court offered Zander at least two opportunities
    to put forth evidence or authority showing the government’s calculations were wrong.
    He declined. The district court then concluded the government had adequately
    demonstrated tax losses exceeding $1 million and accordingly imposed a forty-month
    sentence.
    Zander argues the evidence was insufficiently reliable. A district court’s factual
    findings are reviewed for clear error. United States v. Henderson, 
    649 F.3d 955
    , 958
    (9th Cir. 2011). First, its reliance on computer-generated official IRS reports was not
    misplaced. See Hughes v. United States, 
    953 F.2d 531
    , 539-40 (9th Cir. 1992). The
    district court also heard testimony from IRS agents on the inputs to the agency’s
    computer program and reviewed numerous documents, including Zander’s tax forms,
    bank statements, issued checks, and investment and purchase proofs, for the years at
    issue. There was no clear error in relying on such evidence.
    Zander’s second set of arguments, specific objections to the district court’s
    calculations, are raised for the first time on appeal. Zander did not present evidence
    of unclaimed benefits or exemptions, his filing status, or accounting methods for S
    3
    corporations, to the district court. Any notion that Zander may claim charitable
    deductions for checks issued to him by his corporate entities was properly rejected
    below, as Zander admitted he used these funds for personal expenses. Contentions
    raised for the first time on appeal are reviewed for plain error. United States v.
    Jackson, 
    697 F.3d 1141
    , 1144-45 (9th Cir. 2012). There was no plain error in the
    district court’s tax loss analysis.
    Nor did the district court err, under either a de novo or abuse of discretion
    review, in applying an enhancement for sophisticated means. See United States v.
    Hornbuckle, 
    784 F.3d 549
    , 553 (9th Cir. 2015). “Sophisticated means” include
    “especially complex or especially intricate offense conduct pertaining to the execution
    or concealment of an offense. 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.” U.S.S.G. § 2T1.1(b)(2), Application Note
    5. Zander engaged in precisely such behavior, forming at least four shell corporations
    to receive “donated” income on which he declined to pay taxes, used these entities as
    asset holders, and claimed their checks to him were charitable donations.
    AFFIRMED
    4
    

Document Info

Docket Number: 14-30178

Citation Numbers: 624 F. App'x 563

Filed Date: 12/14/2015

Precedential Status: Non-Precedential

Modified Date: 1/13/2023