United States v. Elizabeth Ann Pratt Stokes

998 F.2d 279, 72 A.F.T.R.2d (RIA) 5716, 1993 U.S. App. LEXIS 20366, 1993 WL 295155
CourtCourt of Appeals for the Fifth Circuit
DecidedAugust 9, 1993
Docket92-3789
StatusPublished
Cited by23 cases

This text of 998 F.2d 279 (United States v. Elizabeth Ann Pratt Stokes) 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. Elizabeth Ann Pratt Stokes, 998 F.2d 279, 72 A.F.T.R.2d (RIA) 5716, 1993 U.S. App. LEXIS 20366, 1993 WL 295155 (5th Cir. 1993).

Opinions

DeMOSS, Circuit Judge:

I.

Stokes was employed as the office manager of a satellite Tulane University Medical Center Cardiology Clinic (Tulane) in Hammond, Louisiana, from March 30, 1985, until June 2, 1987. In this capacity, she had signature authority on the clinic’s bank account.

Stokes used money embezzled from Tulane to open two bank accounts in the name of Cardiology Associates of Hammond. She deposited $134,000 into the first Cardiology Associates’ account and $71,000 into the second. Stokes’s husband, Jimmy, was the only person authorized to withdraw money from the second account.

Stokes wrote checks on the first Cardiology Associates’ account to herself and Jimmy for approximately $20,000 in 1986, and $30,-000 in 1987.

Stokes purchased a money order for $15,-000 with a check written to herself from the Cardiology Associates’ accounts and bought a car. Stokes then purchased a second money order for $15,000 with a check written to herself and bought some land.

Stokes and her husband, Jimmy, filed joint income tax returns in 1986 and 1987. The Stokes’s 1986 return reflected their income as $30,876. Their 1987 return reflected their income as $20,464. Stokes never gave her tax accountant any information about the checks that came from the first Cardiology Associates’ accounts. Nor did the tax preparer ever see any statements from the second Cardiology Associates’ accounts. Therefore, none of the amounts from these checks were declared on the Stokes’s income tax returns. Rather, Stokes only reported the amounts reflected on her W-2 forms received from Tulane Medical Center.

On June 5,1992, a jury convicted Stokes of making a fraudulent income tax return for the tax years 1986 and 1987, in violation of Title 26, U.S.C. § 7206(1). The probation officer recommended in Stokes’s presentence investigation (PSI) report that the district court adjust Stokes’s base offense level upward two levels for using sophisticated means to impede discovery of the nature or extent of her offense pursuant to U.S.S.G. § 2T1.3. The district court adopted the PSI recommendations and made the upward adjustment.

On appeal to this Court, Stokes contends that the district court improperly qualified an expert witness; the evidence at trial was insufficient to find Stokes guilty of the indictment; and the trial court erred in making a two level enhancement for the use of sophisticated means.

We AFFIRM in part and AMEND in part.

II.

WHETHER THE DISTRICT COURT IMPROPERLY QUALIFIED AN EXPERT WITNESS.

Michael Susano, a revenue agent and eighteen year employee of the IRS, was permitted by the district court to testify as an [281]*281expert in the calculation and compilation of income and taxes.

Stokes objected at trial to Mr. Susano’s admission as an expert because Mr. Susano had not prepared tax returns for taxpayers for almost thirty years, all of his relevant experience had been as a revenue agent with the IRS, and there was no indication that he had ever been considered an expert in his field outside of the Internal Revenue Service.

Whether a witness is shown to be qualified as an expert is a preliminary question to be determined within the sound discretion of the trial judge.

Trial judges have commonly allowed IRS agents to qualify as experts in the field of tax computations in criminal tax cases. See e.g. United States v. Mohney, 949 F.2d 1397, 1406 (6th Cir.1991); United States v. Windfelder, 790 F.2d 576, 581 (7th Cir.1986).

The trial judge did not abuse his discretion in allowing an IRS revenue agent to testify as an expert in the calculation of income and taxes.

III.

WHETHER THERE WAS SUFFICIENT EVIDENCE TO FIND THE DEFENDANT GUILTY OF THE INDICTMENT.

Stokes next complains that the evidence did not establish that she was aware that the proceeds in the checks she wrote to her benefit from the clinic’s account should have been included in the computation of her income.

A conviction cannot stand unless the evidence supporting it is such that when it is viewed in the light most favorable to the prosecution, it can be found that any rational trier of fact could have found all the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Stokes could have asked her accountant whether the $30,000 used to purchase the car and real estate was taxable income. Since she never told the accountant about the money, the jury was free to make the inference that this was a calculated decision by her. Criminal willfulness can be inferred when a defendant does not supply her tax preparer with evidence of substantial items of income. United States v. Frank, 437 F.2d 452, 453 (9th Cir.1971), cert. denied, Frank v. United States, 402 U.S. 974, 91 S.Ct. 1661, 29 L.Ed.2d 139 (1971). Moreover, evidence of a consistent pattern of under reporting large amounts of income will support the necessary inference of willfulness. Escobar v. United States, 388 F.2d 661, 661 (5th Cir.1967), cert. denied, Escobar v. United States, 390 U.S. 1024, 88 S.Ct. 1411, 20 L.Ed.2d 282 (1968).

IV.

WHETHER THE TRIAL COURT ERRED IN MAKING A TWO LEVEL ENHANCEMENT FOR THE USE OF SOPHISTICATED MEANS.

Stokes finally contends that the district court erred in giving her a two level adjustment, pursuant to § 2T1.3(b)(2) of the Sentencing Guidelines, for- using sophisticated means to impede discovery. Stokes argues that since the enhancement authorized by § 2T1.3(b)(2) is directed toward concealment of the offense and that as she did nothing tending to conceal or to impede discovery of the purported tax offense, she should not be penalized.

The government asserts that the evidence proves otherwise. It points out that Stokes set up two clinic accounts under the name of Cardiology Associates of Hammond. One account was under her signature authority but did not have a taxpayer identification number. The second account was under her husband’s signature authority. She wrote $50,589 worth of checks from the first account. Of this amount, two checks, each in the amount of $15,000, were written by her and then transferred into cashier’s checks and these checks were then used to purchase the ear and land. The government contends that the only possible purpose behind exchanging clinic checks for cashier cheeks would be to break the link between Stokes and Tulane. It states that by transferring the checks in this manner, Stokes impeded discovery. Likewise, the government ar[282]*282gues, the second account in her husband’s name also could have had no other purpose than to create a distance between herself and the $71,000.

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United States v. Elizabeth Ann Pratt Stokes
998 F.2d 279 (Fifth Circuit, 1993)

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Bluebook (online)
998 F.2d 279, 72 A.F.T.R.2d (RIA) 5716, 1993 U.S. App. LEXIS 20366, 1993 WL 295155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-elizabeth-ann-pratt-stokes-ca5-1993.