United States v. David Montgomery

747 F.3d 303, 2014 WL 1272142, 113 A.F.T.R.2d (RIA) 1548, 2014 U.S. App. LEXIS 5790
CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 28, 2014
Docket12-20741
StatusPublished
Cited by16 cases

This text of 747 F.3d 303 (United States v. David Montgomery) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. David Montgomery, 747 F.3d 303, 2014 WL 1272142, 113 A.F.T.R.2d (RIA) 1548, 2014 U.S. App. LEXIS 5790 (5th Cir. 2014).

Opinions

JENNIFER WALKER ELROD, Circuit Judge:

Following a jury trial, defendants David and Bridget Montgomery, husband and wife, were convicted of conspiracy to avoid federal income tax and of filing false tax returns. The Montgomerys argue on appeal that the district court incorrectly instructed the jury on the willfulness element of the charged tax offenses and incorrectly calculated the total tax loss resulting from the offenses. There being no reversible error, we AFFIRM.

I.

The Montgomerys owned and operated Montgomery’s Contracting L.L.C., a sole proprietorship that earned revenue by building churches and performing construction work for small businesses and residential properties. They also formed a church called the Restoration Temple Church of God in Christ (“Restoration Temple”), where Mr. Montgomery was the pastor.

On December 20, 2010, a grand jury returned an indictment charging the Mont-gomerys with one count of conspiracy to defraud the United States by impeding, impairing, and obstructing the Internal Revenue Service (“IRS”) in the ascertainment, computation, assessment, and collection of income taxes, in violation of 18 U.S.C. § 371 (“Count One”). The indictment also charged the Montgomerys with two counts of making and subscribing a false federal income tax return, for calendar years 2004 and 2005, in violation of 26 U.S.C. § 7206(1) (“Counts Two and [306]*306Three”). The Montgomerys pleaded not guilty and the case proceeded to trial.

A three-day jury trial commenced on August 7, 2012.1 At trial, the government offered evidence showing that the Montgomerys had underreported the gross receipts of Montgomery’s Contracting on Schedule C of their joint federal income tax return by $1,066,012 for 2003, by $590,362 for 2004, and by $485,613 for 2005, or $2.1 million total.2 The Montgom-erys did not challenge these figures. Instead, the Montgomerys argued at trial that they had not willfully underreported the gross receipts of Montgomery’s Contracting. That is, they argued that they did not know that their actions violated tax law.

The government attempted to show the jury that the Montgomerys, who operated a successful business for several years, were sophisticated taxpayers who knew how to manipulate their income in order to avoid paying taxes. The government offered evidence that the Montgomerys had concealed Montgomery’s Contracting business receipts by depositing them in personal or Restoration Temple bank accounts and by transferring funds among their fourteen separate bank accounts. IRS Special Agent Robert Brown (“Agent Brown”) testified that the Montgomerys gave inconsistent answers when questioned about their business income and expenses.

Other evidence indicated that the Mont-gomerys had reported different levels of income in other endeavors, such as in a loan application or in paperwork submitted to car dealerships for automobile purchases, to suit their needs. For example, Mrs. Montgomery reported $127,274 of business income in a 2003 tax return that she submitted in a loan application. The Montgomerys’ actual tax return that they submitted to the IRS reflected $10,224 of business income. There were at least three other instances of similar behavior. The government also elicited testimony showing that between 2003 and 2006 the Montgomerys and their family members purchased and drove a number of cars, including a Lexus, Land Rover, Mercedes, Nissan, Jeep, BMW, Bentley, and two In-finiti models.

To show that the Montgomerys were well aware of their duty to report the income, the government relied in part on the testimony of Clara Carrington, an accountant who prepared the Montgomerys’ tax returns from 1997 to 2000. Carrington testified that while there are complexities associated with tax returns, “income” is not one of them. Carrington further testified that she advised the Montgomerys that they were required by law to report all of the income and expenses associated with Montgomery’s Construction. Car-rington stopped preparing the Montgomer-ys’ tax returns after 2000 because she felt uncomfortable with the lack of information supplied by the Montgomerys. Thereafter, the Montgomerys used Carrington’s signature without her authorization when submitting their 2003 and 2004 tax returns to the IRS.

[307]*307In his defense, Mr. Montgomery testified that he did not willfully underreport the income from Montgomery’s Contracting or otherwise submit false federal income tax returns. Mr. Montgomery testified that he had donated between 80% and 90% of his earnings to Restoration Temple and that he believed that any money that he donated to Restoration Temple was exempt from federal income taxes.3 He also testified that he believed that Restoration Temple could provide funds to its pastor for his general expenses.

To define the element of willfulness, Mr. Montgomery’s counsel proposed a jury instruction pursuant to Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991), which provided in part:

A defendant does not act willfully if he believes in good faith that his actions comply with the law. Therefore, if the Defendant believed that what he was doing was in accord with the tax statutes, he cannot be said to have acted with criminal intent. Therefore, if you find that the Defendant honestly believed that he was not violating the tax laws, even if that belief was unreasonable or irrational, then you should find him not guilty. However, you may consider whether the Defendant’s belief was actually reasonable as a factor in deciding whether he held that good faith belief.

The government submitted a substantially similar jury instruction pursuant to Cheek:

A defendant does not act willfully if he believes in good faith that his actions comply with the law. If you find that the defendant honestly believed that he was not violating the tax laws, even if that belief was unreasonable or irrational, then you should find the defendant not guilty. However, you may consider whether the defendant’s belief was reasonable and rational as a factor in determining whether the defendant actually held that belief in good faith.

Then, over the Montgomerys’ objection, the district court instructed the jury, in pertinent part:

The Montgomerys must be found to have acted knowingly and willfully. “Knowingly” means that an act was done voluntarily and not because of mistake or accident. “Willfully” means an act was done with a conscious purpose to violate the law. If you find that a defendant acted in good faith, you must acquit that defendant because his good faith is inconsistent with his having the intent to defraud or to violate the law.
The Montgomerys, of course, do not have to prove their good faith, since they do not have to prove anything. If the government establishes beyond a reasonable doubt that a defendant acted with specific intent to defraud, then that defendant could not have had good faith. If a defendant believed, in good faith, that what he was doing followed the tax law, he would not have had criminal intent.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Cooksey
Fifth Circuit, 2023
United States v. Alexis Aguilar-Alonzo
936 F.3d 278 (Fifth Circuit, 2019)
United States v. Manuel Velasquez
710 F. App'x 189 (Fifth Circuit, 2017)
United States v. Kendrick Alexander
681 F. App'x 391 (Fifth Circuit, 2017)
United States v. Edgar Foxx
681 F. App'x 249 (Fourth Circuit, 2017)
United States v. Julie Grant
850 F.3d 209 (Fifth Circuit, 2017)
United States v. Aaron Wikkerink
841 F.3d 327 (Fifth Circuit, 2016)
United States v. Ramona Johnson
841 F.3d 299 (Fifth Circuit, 2016)
United States v. Victor Solis
651 F. App'x 290 (Fifth Circuit, 2016)
United States v. Yolanda Nowlin
640 F. App'x 337 (Fifth Circuit, 2016)
United States v. Cirilo Madrid
610 F. App'x 359 (Fifth Circuit, 2015)
United States v. Quincy Richard, Sr.
775 F.3d 287 (Fifth Circuit, 2014)
United States v. Robert Lopez-Parker
578 F. App'x 423 (Fifth Circuit, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
747 F.3d 303, 2014 WL 1272142, 113 A.F.T.R.2d (RIA) 1548, 2014 U.S. App. LEXIS 5790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-david-montgomery-ca5-2014.