United States v. Dennis J. Nagle

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 27, 2021
• Docket: 20-13033
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13033 Non-Argument Calendar ________________________

D.C. Docket No. 6:19-cr-00173-PGB-EJK-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DENNIS J. NAGLE,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(August 27, 2021)

Before GRANT, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM: USCA11 Case: 20-13033 Date Filed: 08/27/2021 Page: 2 of 8

Dennis Nagle appeals his conviction and sentence for corruptly endeavoring

to obstruct and impede the administration of the internal revenue laws of the

United States. We find no reversible error and therefore affirm.

I.

For more than a decade, Dennis Nagle used several different tactics to avoid

paying taxes and to obstruct and delay the IRS in its efforts to collect the taxes he

owed. At various times, he failed to report income or to file a tax return; hid assets

in a sham limited liability company; repeatedly sent correspondence to the IRS

making baseless arguments about why he supposedly did not have to pay taxes;

made in-person statements to IRS agents falsely promising to comply with tax laws

going forward; completed W-4 forms falsely claiming that he was exempt from tax

withholding; altered or deleted the verification of accuracy on his tax return forms;

sent the IRS numerous bad checks written on a closed bank account, a “bill of

exchange,” promissory notes, and other forms of payment that, while worthless,

automatically triggered a release of liens and delayed collections; used a mailbox

store address and mail forwarding to conceal his home address; and refused to

provide his home address when asked. On at least two occasions, he intercepted

correspondence from the IRS to his employer, and he sent responses on behalf of

the company (without his employer’s knowledge) refusing to withhold

employment taxes and stating that the company would not comply with an IRS

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levy on Nagle’s employment income. Nagle also wrote to a former employer

demanding that it not comply with an IRS levy on his pension, falsely stating that

the levies were invalid and that another employer agreed with his position and was

refusing to cooperate, or (on another occasion) that he had paid his taxes and the

levies had been released. And he threatened to sue or did sue various entities for

complying with IRS levies and threatened to file criminal charges against his

former employer and an IRS revenue officer.

Nagle was charged in a one-count indictment with obstructing and impeding

the due administration of the internal revenue laws, in violation of 26 U.S.C.

§ 7212(a). Nagle proceeded to trial, and a jury found him guilty as charged. The

district court sentenced him to three years in prison followed by one year of

supervised release. This is Nagle’s appeal.

II.

Nagle argues that his conviction should be vacated because of prosecutor

misconduct. Such allegations present mixed questions of fact and law that we

review de novo. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006).

He also argues that the district court erred in calculating his Sentencing Guidelines

sentencing range by using a guideline applicable to tax evasion to calculate his

base offense level and by applying an enhancement for the use of “sophisticated

means” in the commission or concealment of the offense. We review the district

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court’s legal interpretation of the Guidelines de novo. United States v. Feaster,

798 F.3d 1374, 1380 (11th Cir. 2015). We review the court’s relevant factual

findings—including the finding that the defendant used sophisticated means—for

clear error. Id.

A.

First, we address Nagle’s challenge to his conviction, which is based on his

argument that statements made by the prosecutor in his closing rebuttal argument

rose to the level of prosecutorial misconduct. Specifically, Nagle argues that the

prosecutor wrongly represented to the jury that it could find him guilty as charged

based on “corrupt acts” that were not specifically alleged in the indictment. Nagle

contends that this argument was contrary to the jury instructions that the parties

had previously agreed to and implied to the jury that it should disregard the

instructions given by the court.

We will not vacate a defendant’s conviction and grant a new trial based on

prosecutorial misconduct unless we conclude not only that the prosecutor’s

remarks were improper, but also that they prejudicially affected the defendant’s

substantial rights. United States v. Leonard, 4 F.4th 1134, 1148 (11th Cir. 2021).

“The defendant’s substantial rights are prejudicially affected when a reasonable

probability arises that, but for the comments, the outcome of the trial would have

been different.” United States v. Rivera, 780 F.3d 1084, 1096 (11th Cir. 2015).

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Here, even assuming for the sake of argument that the prosecutor’s

comments were improper, a new trial is not warranted because there is no

reasonable probability that the outcome of the trial would have been different if the

prosecutor had not made the comments. First, the evidence that Nagle committed

at least one of the “corrupt acts” listed in the indictment—including Nagle’s own

testimony admitting to much of the conduct alleged—was overwhelming. And

second, even if the prosecutor’s comments could be understood as an argument

that the jury should disregard the court’s instructions, as Nagle argues, the court

cured any potential for misunderstanding by giving the jury its instructions

immediately afterward, including an instruction that “You must follow the law as I

explain it, even if you do not agree with the law, and you must follow all of my

instructions as a whole. You must not single out or disregard any of the Court’s

instructions on the law.” Because the prosecutor’s comments did not prejudicially

affect Nagle’s substantial rights, we reject his argument that his conviction should

be vacated.

B.

Nagle also challenges the district court’s calculation of his Sentencing

Guidelines sentencing range. He argues that the district court erred by using

§ 2T1.1 of the Guidelines to determine his base offense level. We do not agree.

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The Statutory Index appended to the Sentencing Guidelines manual specifies

the offense guideline section in Chapter Two that applies for the statute of

conviction. The Index provides that either § 2J1.2 (for obstruction of justice) or

§ 2T1.1 (for tax evasion and similar conduct) applies for a violation of the

Omnibus Clause of 26 U.S.C. § 7212(a). Nagle argues that the district court

should have used § 2J1.2 because he was “charged with and convicted of

endeavoring to ‘obstruct and impede the due administration of the internal revenue

laws.’”

But the Statutory Index states that if “more than one guideline section is

referenced for the particular statute, use the guideline most appropriate for the

offense conduct charged in the count of which the defendant was convicted.”

U.S.S.G. Statutory Index, App. A (emphasis supplied). The offense conduct

charged in Nagle’s indictment recounts Nagle’s numerous and varied attempts to

avoid paying his taxes by, among other things, failing to file returns or pay taxes

and submitting false or fraudulent documents and statements. The conduct

covered by § 2J1.2, the obstruction-of-justice guideline, is “frequently part of an

effort to avoid punishment for an offense that the defendant has committed or to

assist another person to escape punishment for an offense.” U.S.S.G. § 2J1.2,

background. Section 2T1.1, on the other hand, applies to conduct such as tax

evasion; the willful failure to file returns, supply information, or pay taxes; and

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filing fraudulent or false returns, statements, or other documents. U.S.S.G.

§ 2T1.1. The district court did not err in using § 2T1.1 to calculate Nagle’s base

offense level because the guideline for tax evasion is more appropriate to the

offense conduct charged.

C.

The Sentencing Guidelines provide for a two-level enhancement to the

defendant’s offense level under § 2T1.1 if the offense involved “sophisticated

means.” U.S.S.G. § 2T1.1(b)(2). According to the guideline application notes,

“sophisticated means” refers to “especially complex or especially intricate offense

conduct pertaining to the execution or concealment of an offense,” including

conduct “such as hiding assets or transactions, or both, through the use of fictitious

entities, corporate shells, or offshore financial accounts.” Id., comment. (n.5).

“Although the mere failure to report income to an accountant does not involve

sophisticated means, a defendant need not use offshore bank accounts or

transactions through fictitious entities in order for the enhancement to apply.”

United States v. Clarke, 562 F.3d 1158, 1165 (11th Cir. 2009) (internal citation

omitted). And even if each of the defendant’s actions, taken alone, was not

sophisticated, the enhancement may be applied if the overall scheme was

sophisticated. United States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir. 2010).

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Here, we cannot say that the district court erred in applying the

sophisticated-means enhancement. Nagle developed a long-term strategy for

impeding and delaying the IRS’s attempts to collect on his tax debt while waiting

for portions of the debt to become uncollectable due to the ten-year statute of

limitations. His tactics in implementing his scheme were creative and varied, and

were apparently based on a careful study of tax laws and IRS collection methods.

He created documents meant to look like negotiable instruments in order to trigger

a release of tax liens; hid assets in a sham company; requested a “collection due

process” hearing to “stop the clock” on IRS levies; used his position in his

employer’s company to intercept IRS correspondence, obstruct a levy on his

salary, and attempt to obstruct another levy on his pension benefits; and consulted

with others on additional tactics to defer collections as long as possible. We find

no clear error in the district court’s finding that Nagle’s overall scheme involved

the use of sophisticated means to carry out his offense.

IV.

For the foregoing reasons, we affirm Nagle’s conviction and sentence.

AFFIRMED.