Free Memorandum - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona MARY BETH PFISTER Assistant U.S. Attorney Arizona State Bar No.015103 Two Renaissance Square 40 North Central Avenue Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected] JOHN BOYLE Assistant U.S. Attorney Arizona State Bar No. 015640

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America,
CR-04-1281-PHX-DGC

Plaintiff, v. Michael Anderson and Gina Anderson, Defendants. The United States, by and through undersigned counsel, hereby submits the following GOVERNMENT'S TRIAL MEMORANDUM

18 Trial Memorandum in the above-referenced case. This Memorandum outlines the relevant 19 factual background of the tax charges against defendants, the law relating to those charges, and 20 potential evidentiary issues that might arise during the course of trial. 21 I. 22 23 FACTUAL BACKGROUND A. Defendants' Conduct Michael Anderson was employed by the United States Border Patrol as an Inspector

24 through November 30, 2001. In 2000 and 2001, he also owned and operated a business called 25 Line X of Yuma, L.L.C. and a business called Dezert Kartz, L.L.C. During this same time 26 frame, his wife, Gina Anderson, owned and operated a business called Bodywise, L.L.C. The 27 defendants reported income from these activities. The evidence at trial will show, however, that 28 during 2000 and 2001, Michael Anderson also earned income by waiving loads of drugs through

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1 the San Luis Port of Entry. Both he and his wife were aware of this illegally-obtained income 2 and reported none of it. 3 In addition to testimony the government will elicit from at least two cooperating

4 witnesses who are familiar with the payments Anderson received for waiving through drug 5 loads, the government will offer in evidence a recorded conversation that took place in 6 September of 2002 between one of these cooperating witnesses and Anderson. In this 7 conversation, the cooperating witness tells Anderson that one of his workers was arrested and 8 he is worried the worker will talk about crossing loads of drugs through the Port of Entry. 9 Anderson repeatedly tells the witness that if he is interviewed he should tell agents that he knows 10 nothing and that the witness should deny that he knows Anderson. Anderson also tells the 11 witness that the agents will find no evidence. Anderson's wife was present during this 12 conversation also. Both Anderson and his wife tell the witness that they were "not stupid" when 13 spending the money they received. Anderson says that he avoided "red flags," and that he spent 14 his money wisely. His wife says that they were careful in spending their money and did not do 15 anything suspicious 16 Defendants are charged with two counts of filing false income tax returns for the tax years

17 2000 and 2001, in violation of Title 26, United States Code, Section 7206(1). More specifically, 18 the Indictment charges the defendants with knowingly and willfully understating their taxable 19 income by declaring under penalties of perjury in their tax return forms 1040 that they had 20 $5,375 taxable income during 2000 and $0 taxable income during 2001, when in fact their 21 taxable income was well in excess of those amounts. Defendants also are charged with two 22 counts of tax evasion for the years 2000 and 2001, in violation of Title 26, United States Code, 23 Section 7201. 24 25 B. Calculation of Defendants' Income Government agents from the Federal Bureau of Investigation ("FBI") and Internal

26 Revenue Service ("IRS") investigated the Andersons' bank deposits and expenditures during 27 2000 and 2001. Based on that investigation, IRS agent Brian Leighton will testify that the 28
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1 Andersons substantially under-reported their actual income. With respect to the tax year 2000, 2 in a form 1040 filed on their behalf by their tax preparer, the Andersons reported taxable income 3 of $5,375. According to the government figures, which are subject to change based on the 4 evidence elicited at trial, defendants' taxable income for tax year 2000 was approximately 5 $118,571. With respect to the tax year 2001, in a form 1040 again filed on their behalf by their 6 tax preparer, the Andersons reported taxable income of $0. According to the government 7 figures, which are subject to change based on the evidence elicited at trial, defendants' taxable 8 income for tax year 2001 was approximately $109,581. 9 IRS Agent Leighton used the bank deposits plus expenditures method of proof to

10 calculate defendants' taxable income for 2000 and 2001. This is an indirect method of proof in 11 which the agent identifies all bank deposits during the relevant time frame and subtracts from 12 those deposits from non-taxable sources to determine the net taxable bank deposits. The agent 13 then identifies and adds to this number the defendants' cash expenditures for the period being 14 examined to determine defendants' gross income. Applicable deductions and exemptions then 15 are subtracted to determine the defendants' corrected taxable income, which is compared with 16 the taxable income reported on defendants' return. See United States v. Soulard, 730 F.2d 1292, 17 1296 n. 1 (9th Cir. 1984); United States v. Hall, 650 F.2d 994, 996 n. 4 (9th Cir. 1981). The bank 18 deposits method is consistently accepted by the courts as a means of proving income. Id. The 19 bank deposits method need not be corroborated with cash expenditures but certainly may be. 20 When using this method of proof, the government must first introduce evidence that (1)

21 the taxpayer was involved in an income-producing activity; (2) regular deposits were made into 22 the taxpayer's accounts; and (3) a full investigation was done of those accounts to distinguish 23 between income and non-income deposits. United States v. Stone, 770 F.2d 842, 844 (9th Cir. 24 1984); United States v. Helina, 549 F.2d 713, 720 (9th Cir. 1977). 25 The government will introduce evidence that Anderson was involved in the income

26 producing activity of waiving through drug loads. Illegal income is taxable just like legal 27 income. James v. United States, 366 U.S. 213, 218-20 (1961). To the extent evidence of the 28
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1 income-producing activity is speculative, that goes to its weight, not its admissibility. United 2 States v. Wright, 667 F.2d 793, 800 (9th Cir. 1982). The government also will introduce the bank 3 records showing regular deposits into defendants' accounts and will describe its investigation 4 to distinguish between income and non-income deposits. The government need not negate every 5 possible non-taxable source of income. United States v. Hamilton, 620 F.2d 712, 714 (9th Cir. 6 1980). Conducting a thorough investigation is enough. Stone, 770 F.2d at 844-45; Helina, 549 7 F.2d at 720. The government also will introduce evidence of defendant's cash expenditures 8 during the relevant time frame. 9 Agent Leighton will summarize the evidence and present schedules reflecting the

10 government's calculations of defendants' bank deposits and cash expenditures. Another IRS 11 employee, Debbie Carlson, using those calculations, then will testify regarding the amount of 12 tax due and owing by defendants for 2000 and 2001. 13 II. 14 15 LEGAL ANALYSIS A. Subscribing False Tax Returns ­ 26 U.S.C. § 7206(1)

Section 7206(1) of Title 26, United States Code, provides in pertinent part that any person

16 who "willfully makes and subscribes any return . . . which contains or is verified by a written 17 declaration that it is made under the penalties of perjury, and which he does not believe to be 18 true and correct as to every material matter . . . shall be guilty of a felony . . ." 26 U.S.C. § 19 7206(1). To establish a violation of 26 U.S.C. § 7206(1), the government must prove (1) that 20 the defendant made and subscribed a tax return that was false as to a material matter; (2) that the 21 defendant signed the tax return under penalty of perjury; (3) that the defendant did not believe 22 the tax return was true as to every material matter; and (4) that the defendant willfully subscribed 23 to the false return with the specific intent to violate the law. United States v. Scholl, 166 F.3d 24 964, 979-80 (9th Cir. 1999); United States v. Hanson, 2 F.3d 942, 945 (9th Cir. 1993). 25 26 27 28
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1. Defendants Made and Subscribed Tax Returns. The phrase "make a return" has been construed to include filing the return. See Hanson,

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1 2 F.3d at 946. The government does not need to prove that the defendant placed the information 2 on the return himself or that the defendant personally filed the return, so long as he authorized 3 its filing. Cf. United States v. Kellog, 955 F.2d 1244, 1248-1249 (9th Cir. 1992) (defendant held 4 liable under 7206(1) although he did not personally file returns because he helped prepare them 5 and they were filed). The evidence will show that defendants made their tax returns for tax years 6 2000 and 2001 in that they provided the information for those returns to their tax preparer, 7 signed these tax returns, and either filed them or authorized their filing. 8 9 2. Defendants Signed the Returns Under Penalty of Perjury The fact that an individual's name is signed to a return creates a rebuttable presumption

10 that the return actually was signed by that individual and that he knew its contents. 26 U.S.C. 11 § 6064. The evidence will show that defendants' names were signed on their 2000 and 2001 12 returns and that they signed these returns under penalty of perjury. Specifically, the returns 13 state: 14 15 16 17 18 3. Defendants Did Not Believe the Returns Were True as to Every Material Matter. To establish a violation of Section 7206(1), the government must prove that the "Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements and to the best of my knowledge and belief, they are true, correct, and accurately list all amounts and sources of income I received during the tax year . . . ."

19 defendant knew the return was not true and correct as to every material matter. A false 20 statement on a return is material if the information provided is necessary to determine 21 whether an income tax is owed. Scholl, 166 F.3d at 980. Materiality is a mixed question of 22 law and fact for the jury to decide. United States v. Urchimura, 125 F.3d 1282, 1286 (9th Cir. 23 1997). To establish materiality, the government need not prove that the unreported income 24 resulted in a tax loss to the government. United States v. Marashi, 913 F.2d 724, 736 (9th Cir. 25 1990). 26 In this case, the evidence will show that defendants' taxable income as stated on their

27 returns was false. Defendants' false statements regarding their taxable income were material 28
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1 because such information was necessary in determining whether tax was owed. 2 3 4 4. Defendants Acted Willfully. Willfulness has been defined by the courts as a voluntary, intentional violation of a

5 known legal duty. Cheek v. United States, 498 U.S. 192, 201-204 (1991). The government must 6 show that the taxpayer was aware of his or her obligations under the tax laws and intended to 7 disobey them. United States v. Conforte, 624 F.2d 869, 875 (9th Cir. 1980). Willfulness is 8 determined by a subjective standard; therefore, the defendant is not required to have been 9 objectively 10 reasonable in his understanding of his legal duties or belief that he was in compliance with the 11 law. Cheek, 498 U.S. at 202; United States v. Powell, 955 F.2d 1206, 1211-1212 (9th Cir. 1992). 12 However, the jury may consider the reasonableness of the defendant's asserted beliefs in 13 determining whether he honestly or genuinely held those beliefs. Id. 14 Absent an admission or confession, willfulness is rarely subject to direct proof and must

15 generally be inferred from the defendant's acts or conduct. United States v. Marabelles, 724 16 F.2d 1374, 1379 (9th Cir. 1984). The government thus may rely solely on circumstantial 17 evidence to prove willfulness. See, e.g., United States v. Tucker, 133 F.3d 1208, 1218 (9th Cir. 18 1998) (large discrepancy between reported income and total income can be evidence defendant 19 acted willfully and not by mistake); Soulard, 730 F.2d at 1304-05 (excessive use of cash can be 20 evidence of intent to violate the law); Hamilton, 620 F.2d at 717 (fact that source of income was 21 illegal was significant on issue of willfulness, as was defendant's dealing in cash to avoid 22 creating records). 23 Willfulness will be shown here by, among other things, the defendants' providing false

24 information to their tax return preparer, extensively using cash and cashier's checks which could 25 not be reconciled with the amount of income reported on their returns, and lying about the source 26 of a down payment on a loan application for the purchase of a residence. 27 28 B. Tax Evasion ­ 26 U.S.C. § 7201
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To convict a defendant of tax evasion in violation of 26 U.S.C. § 7201, the government

2 must prove the following elements: (1) additional tax was due and owing by the defendant; (2) 3 defendant took an affirmative act of evasion; and (3) defendant acted willfully. United States 4 v. Carlson, 235 F.3d 466, 468 (9th Cir. 2000); Stone, 770 F.2d at 844. 5 6 1. Additional Tax Was Due and Owing By Defendants. The government will show that additional tax was due and owing by defendants with the

7 expert testimony of IRS employee Debbie Carlson, which will be based on the taxable income 8 figure arrived at by IRS Agent Leighton using the bank deposits plus cash expenditures method. 9 The government need not prove the actual amount of tax owed, just that there was "some tax 10 deficiency." Marashi, 913 F.2d at 736. 11 12 2. Defendants Took an Affirmative Act of Evasion. "Any conduct, the likely effect of which would be to mislead or to conceal" constitutes

13 an affirmative act to evade. Spies v. United States, 317 U.S. 492, 499 (1943). A broad range 14 of acts may satisfy this requirement, including concealing assets, covering up sources of income 15 and handling one's affairs to avoid making usual records. Id. A common act of evasion is filing 16 a false return. See, e.g., Marabelles, supra. 17 The evidence will show that defendants took affirmative acts of evasion when they

18 misstated their actual income to their tax preparer, filed false returns, used cash and cashier's 19 checks instead of regular checks, and lied about the source of a down payment on a loan 20 application for the purchase of a residence. 21 22 3. Defendants Acted Willfully. The evidence showing defendants' willfulness for their tax evasion can be the same

23 evidence showing willfulness for their filing false returns. Marabelles, 724 F.2d at 1380. 24 Moreover, willfulness can be inferred from a defendant's conduct even if his conduct also served 25 another purpose, like concealing a crime, as it did here. Spies, 317 U.S. at 499. 26 Defendants' willfulness will be shown by, among other things, their providing false

27 information to their tax return preparer, extensively using cash and cashier's checks which could 28
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1 not be reconciled with the amount of income reported on their returns, and lying about the source 2 of a down payment on a loan application for the purchase of a residence. 3 III. 4 5 EVIDENTIARY ISSUES. A. Documents

The government intends to introduce the 1040 income tax returns filed by the defendants

6 for the taxable years 2000-2001. Other documents to be introduced, include but are not limited 7 to, bank records, records seized at defendants' home and businesses pursuant to warrants, and 8 other records of defendants' spending during the time period at issue. 9 The original or certified copies of the tax returns are self-authenticating and

10 admissible pursuant to Federal Rules of Evidence, Rules 902(4) and 803(8). They are not 11 hearsay because they are being offered not for the truth of the matter asserted therein but 12 rather to show defendant's false representations. Fed. R. Evid. 801(c); United States v. 13 Wellington, 754 F.2d 1457, 1464 (9th Cir. 1985). 14 The bank records and other records of defendants' spending are business records and,

15 as such, are admissible pursuant to Rules 803(6) and 902(11) of the Federal Rules of 16 Evidence. For a document to be admitted as a business record, a custodian or other 17 "qualified witness" must establish that: (1) the record was made at or near the time of the 18 matters set forth by or from information transmitted by a person with knowledge of those 19 matters; (2) the record is kept in the course of a regularly conducted business activity; and (3) 20 it was the regular practice of that business activity to make the record. Fed. R. Evid. 803(6) 21 & 902(11). A "qualified witness" can be anyone who understands the record keeping system 22 involved. United States v. Arias-Villaneuva, 998 F.2d 1491, 1503 (9th Cir. 1993), citing 23 United States v. Ray, 930 F.2d 1368, 1370 (9th Cir. 1990). It is not necessary that this witness 24 be the one who personally generated the document or that this person verify the underlying 25 information. Id. Moreover, if a document from another is received and retained by a 26 business and held in its regular course of business, it is admissible as the business record of 27 28
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1 that business. MRT Constr. Inc. v. Hardrives, Inc., 158 F.3d 478, 483 (9th Cir. 1998), citing 2 United States v. Childs, 5 F.3d 1328, 1332-1333 (9th Cir. 1993). 3 These business records will be authenticated either by live testimony from a custodian

4 or other qualified witness or by a certification prepared by a custodian. 5 6 B. Statements by Defendants to Their Tax Preparer

The government will introduce defendants' statements to their tax preparer that they

7 had no additional income in 2000 and 2001 beyond that set forth in their 1040s. These 8 statements are not being offered for their truth and therefore are not hearsay. Fed. R. Evid. 9 801(c) Moreover, a statement offered against a party, which is the party's own statement in 10 either an individual or representative capacity, is not hearsay. Fed. R. Evid. 801(d)(2)(A). 11 United States v. Weiner, 578 F.2d 757, 770 (9th Cir. 1978). 12 13 C. Audiotapes and Transcripts.

The admission of tape recordings at trial rests within the discretion of the trial court.

14 United States v. Lane, 514 F.2d 22, 27 (9th Cir. 1975). Recorded conversations are generally 15 admissible unless the unintelligible parts are so substantial that the recording as a whole is 16 untrustworthy. United States v. Rrapi, 175 F.3d 742, 746 (9th Cir. 199), citing Lane, supra. 17 Foundation for admission of tape recordings is proper where the government shows

18 that the tapes are "authentic, accurate and trustworthy." United States v. Panaro, 266 F.3d 19 939, 951 (9th Cir. 2001), citing United States v. Mouton, 617 F.2d 1379, 1383 (9th Cir. 1980), 20 and United States v. King, 587 F.2d 956, 961 (9th Cir. 1978). 21 The government will introduce an audiotape of a conversation between one of its

22 cooperating witnesses, Michael Anderson and Gina Anderson. The tapes will be 23 authenticated by the cooperating witness who participated in the conversations and/or the 24 agent who participated in the recordings. 25 A lay witness can make a voice identification. United States v. Thomas, 586 F.2d

26 123, 133 (9th Cir. 1978). Under Rule 901(b)(5), voice identification to determine 27 admissibility of recorded conversations may be made by one who has heard the voice "at any 28
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1 time under circumstances connecting it with the alleged speaker." Fed. R. Evid. 901(b)(5). 2 The Ninth Circuit also permits witnesses to testify as to their understanding of the words 3 used by defendants in recorded conversations. Parente v. United States, 249 F.2d 752, 754 4 (9th Cir. 1957). 5 The government also will use a transcript of the recorded conversation during its

6 presentation. It is within the trial court's discretion to allow the jury to read properly 7 authenticated transcripts of relevant taped conversations when the tapes are played. United 8 States v. Taghipour, 964 F.2d 908, 910 (9th Cir. 1992). The use of transcripts has been 9 likened to other familiar and permissible forms of evidence that aid in understanding the facts 10 of a case. Id. Proper use of transcripts can be assured by giving defense counsel an 11 opportunity to review the tapes and transcripts before trial (which has been done in this case), 12 by allowing the jury to compare the transcripts to the recordings and hear arguments of 13 counsel regarding the content and meaning of the recorded conversations, and by the court's 14 giving a limiting instruction when the transcripts are distributed so the jury is advised that the 15 tapes, rather than the transcripts, are evidence. See United States v. Hsieh Hui Mei Chen, 754 16 F.2d 817, 824 (9th Cir. 1985). 17 18 D. Expert Testimony.

When specialized knowledge will assist the trier of fact to understand the evidence or

19 determine a fact in issue and the expert is qualified as such by his knowledge, skill, 20 experience, training or education, the expert may testify in the form of his opinion or 21 otherwise so long as (1) the testimony is based upon sufficient facts or data; (2) the testimony 22 is the product of reliable principles and methods; and (3) the witness has applied the 23 principles and methods reliably to the facts of the case. Fed. R. Evid. 702. The facts or data 24 on which the expert bases his opinion may be made known to the expert at or before the 25 hearing, and the facts or data need not be admissible if they are of a type reasonably relied 26 upon by experts in the field in forming opinions on the subject. Fed. R. Evid. 703. 27 28
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Generally, experts may testify as to their opinions on ultimate issues to be decided by

2 the trier of fact. Fed. R. Evid. 704(a). However, Rule 704(b) provides that no expert witness 3 can state an opinion or inference as to whether the defendant did or did not have the mental 4 state or condition constituting an element of the crime charged or a defense thereto. Such 5 ultimate issues are for the trier of fact alone. 6 The government will call experts who have specialized knowledge, skill, experience,

7 training and/or education in accounting and computing taxes due and owing. Their 8 testimony will assist the jury in understanding the evidence offered by the government. IRS 9 Agent Brian Leighton will describe the proper method for the accounting of income and 10 expenses. 11 Analyzing the relevant financial records of defendants, he will explain how he used the bank 12 deposits method plus the cash expenditures method to determine defendants' taxable income 13 during the relevant time frame. His testimony will be based upon sufficient data, and he will 14 explain how he used reliable principles and methods and applied these principles and 15 methods reliably to the facts of this case. The government will introduce summary schedules 16 through Agent Leighton which analyze numerous financial transactions and accounting 17 entries. Debbie Carlson, an IRS employee with the Small Business/ Self Employed section, 18 will give her opinion regarding the tax consequences of these transactions. The use of an 19 expert witness to establish the proper tax consequence of a transaction has been approved by 20 the Ninth Circuit. United States v. Clardy, 612 F.2d 1139, 1153 (9th Cir. 1980). 21 Ms. Carlson, who is a summary witness, should be allowed to remain in the courtroom

22 during the trial, in addition to the case agent (Agent Leighton) under Fed. R. Evid. 615. See 23 United States v. Lussier, 929 F.2d 25, 30 (1st Cir. 1991) (district court did not abuse 24 discretion in allowing IRS witness to remain in court when his testimony was as an expert 25 regarding the calculation of the taxes due and owing by defendant). The nature of a 26 summary witness' testimony requires that she draw conclusions from the evidence presented 27 at trial. United States v. Esser, 520 F.2d 213, 218 (7th Cir. 1975). 28
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1 2

E.

Summary Charts

Summaries of defendants' financial transactions will be prepared based on evidence

3 that has been admitted. The use of summary charts in cases like this one has been approved 4 by the Ninth Circuit because they contribute to the clarity of the presentation to the jury, 5 avoid needless consumption of time and are a reasonable method of presenting the evidence. 6 See, e.g., United States v. Gardner, 611 F.2d 770, 776 (9th Cir. 1980). Copies of the 7 summaries may be given to the jury while the expert witness testifies concerning them. 8 Barsky v. United States, 339 F.2d 180, 181 (9th Cir. 1964). 9 Rule 1006 specifically authorizes the use of summary charts. Fed. R. Evid. 1006.

10 Rule 1006 provides in pertinent part: 11 12 13 14 Id. 15 Summary charts may be admitted into evidence to illustrate testimony, to coordinate The contents of voluminous writings, recordings, or photographs which cannot be conveniently examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

16 underlying facts that have been placed in evidence, and to summarize such facts. See United 17 States v. Meyers, 847 F.2d 1408, 1412 (9th Cir. 1988) (chart summarizing phone calls and 18 events observed by surveillance teams was properly admitted into evidence as a summary). 19 Although the underlying materials must be admissible, they need not be admitted. Id. 20 (surveillance reports, while not admitted, were admissible, and therefore summary charts of 21 the reports were properly admitted.) 22 It is left to the discretion of the trial court whether charts and diagrams admitted under

23 Rule 1006 should be sent to the jury with or without instructions. The modern interpretation 24 of Rule 1006 provides that summaries and charts that qualify under the above-mentioned rule 25 should be admitted without instruction. 5 Weinstein & Berger, Weinstein's Evidence, 26 1006[7], p. 1006-15. The Ninth Circuit has determined that it is not reversible error for the 27 28
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1 2 3 4 Court to admit a summary chart without a limiting instruction when defendant has an 5 opportunity to challenge the underlying facts. See Gardner, 611 F.2d at 776 n.3. 6 ... 7 ... 8 ... 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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S/ Mary Beth Pfister Patricia Gitre Attorney for Gina Anderson I hereby certify that on February 22, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: David Lockhart Attorney for Michael Anderson

Submitted this 22nd day of February, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Mary Beth Pfister MARY BETH PFISTER Assistant U.S. Attorney JOHN BOYLE Assistant U.S. Attorney

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