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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12336 Non-Argument Calendar ________________________
D.C. Docket No. 9:17-cr-80187-RLR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL ANTONIO SEVERINO,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(September 3, 2019)
Before MARTIN, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM: Case: 18-12336 Date Filed: 09/03/2019 Page: 2 of 20
Manuel Antonio Severino appeals his convictions and 65-month sentence for
aiding and assisting in the preparation of false tax returns, wire fraud, and
aggravated identity theft. The district court did not abuse its discretion in declining
to give the additional willfulness instruction requested by Severino because that
instruction was subsumed by the offense instruction given. In addition, the
evidence was sufficient to support Severino’s convictions, and the court did not
abuse its discretion in weighing the 18 U.S.C. § 3553(a) factors or rely on any
improper factor in imposing sentence. We therefore affirm.
I.
Severino proceeded to a jury trial on all 17 counts of a superseding
indictment charging him with: 13 counts of aiding and assisting in the preparation
of false tax returns, in violation of 26 U.S.C. § 7206(2) and 18 U.S.C. § 2 (Counts
1–13); 2 counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2 (Counts 14–
15); and 2 counts of aggravated identity theft against “J.LM.” and “K.M” (later
identified as Kenneth Mestre), in violation of 18 U.S.C. §§ 1028A(a)(1) and 2,
(Counts 16–17).
At trial, the government called an expert witness and Internal Revenue
Service agent who testified, in relevant part, that the American Opportunity Credit
is a tax credit that applies to qualified post-secondary education expenses. The
agent explained that a Form 1098-T issued by the educational institution is used to
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verify the credit and prevent fraud. He further stated that in claiming the American
Opportunity Credit, the education expenses had to be paid in the same tax year for
which the credit was claimed and that a Form 8863 was supposed to be attached to
the tax return. The Form 8863 required the name of the student and the
educational institution that they attended, as well as the amount of expenses based
on the 1098-T.
The government later called an investigative analyst for the IRS, who
testified that 452 tax returns, unsigned by any preparer, had come from two IP
addresses linked to Severino; later testimony tied the IPs to Severino’s residential
address. Of the 452 unsigned returns, 388 claimed the American Opportunity
Credit, but only 14 had a corresponding 1098-T. The analyst stated that this was
much higher than the ordinary proportion of returns claiming the credit.
In addition, the government offered testimony from four individuals whose
tax returns were the subject of the § 7206(2) counts; each testified that Severino
had prepared the returns on their behalf. The 2014 and 2015 returns that Severino
prepared for Nidia Sierra both claimed the American Opportunity Credit based on
expenses that Sierra had allegedly incurred in nursing school, but Sierra testified
that she had not attended school or spent money on education, and that she had not
told Severino that she had done so. Similarly, the 2013 return that Severino
prepared for Raul Mendoza claimed the American Opportunity Credit based on his
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attending a particular college, but Mendoza testified that he had not attended that
college in 2013 or told Severino that he had. The 2014 return Severino prepared
for Jorge Oviedo likewise claimed an educational credit on behalf of J.L.M., who
was listed as Oviedo’s dependent niece and whose Social Security number was
provided. But Oviedo testified that he did not know J.L.M., tell Severino that
J.L.M. was his niece, provide J.L.M.’s Social Security number, or tell Severino
that he had incurred any of the claimed expenses. Finally, the 2013–2015 tax
returns that Severino prepared for Rita Alicia Llerena claimed the American
Opportunity Credit based on her attending a school called Medvance, but Llerena
testified that she had not attended that school in those years or told Severino that
she had done so. Llerena also testified that 2013–2015 tax returns that Severino
had prepared for her adult daughter and son-in-law falsely claimed educational
credits on their behalf. She further testified that on her 2015 tax return, Severino
had listed her adult son, Mestre, as a dependent, even though she had asked him
not to.
Though J.L.M. did not testify, Mestre did. On the tax returns of an
individual named Hugh Parks, Mestre was listed as Parks’s dependent nephew and
Mestre’s Social Security number was also provided. Mestre testified that he had
not authorized Severino to use his Social Security number, that he did not know
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Parks, and that Parks was not his uncle. He also testified that he was not aware
that he was listed as a dependent on his mother’s 2015 return.
Severino moved for a judgment of acquittal on all counts, contending in part
that there was no evidence that he had breached any known legal duty with respect
to the § 7206(2) counts; that there was insufficient evidence of a scheme to defraud
with respect to the wire fraud counts; and that there was insufficient evidence that
he had inputted the information on the returns with respect to the wire fraud and
aggravated identity theft counts. The district court denied the motion, and
Severino did not present a defense.
Severino asked the court to provide the willfulness instruction listed in Basic
Instruction 9.1B of this Court’s Pattern Jury Instructions, which refers to the
“violation of a known legal duty.” Severino noted, however, that the commentary
to the pattern instruction for 26 U.S.C. § 7206(2) appeared to indicate that
instruction B9.1B was “not specifically required and may be subsumed . . . by the
standard instruction.” The court denied the request for the B9.1B instruction,
concluding that it usually applied in cases involving complex tax issues. It
ultimately issued an offense instruction stating, in part, that it is a federal crime “to
willfully aid or assist to prepare under the Internal Revenue laws a document that
is false or fraudulent as to any material matter,” and that the government must
show that the defendant acted “with the intent to do something the defendant knew
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the law forbids.” The court also issued an instruction stating that “willfully”
means that an act “was committed voluntarily and purposely, with the intent to do
something the law forbids; that is, with the bad purpose to disobey or disregard the
law.” This instruction also stated that although a defendant must act with intent to
do something the law forbids, he “need not be aware of the specific law or rule that
his conduct may be violating.”
The jury convicted Severino on all 17 counts. The presentence investigation
report (“PSI”) assigned Severino zero criminal history points. Based on his total
offense level of 20 and criminal history category of I, the recommended guideline
range was 33 to 41 months, plus two years consecutive for the aggravated identity
theft counts. The PSI also mentioned that Severino had grown up in poverty in the
Dominican Republic, had dropped out of school, and had become a U.S. citizen.
At sentencing, the government argued for a sentence of 41 months plus two
years, noting that Severino had engaged in tax fraud for five years, had caused over
$500,000 in loss for the electronic returns filed from 2013–2015, and had not
accepted responsibility. The government also argued that Severino had exploited
people who trusted him, and who did not speak fluent English or otherwise
understand the tax preparation process. The court interjected that deterrence was a
“major factor,” and that Severino’s was “one of the most unsophisticated tax
frauds” it had seen.
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Severino argued for a sentence of 33 months plus two years, noting his lack
of criminal history. The court responded that Severino’s lack of criminal history
was “not taken into account” because if he had such a history, his guideline range
would be higher. The court also noted Severino’s lack of remorse, observed that
he had engaged in “blatant thievery,” and again emphasized deterrence. The court
stated that Severino’s conduct “paint[ed] a terrible picture” and that “this
apparently is going on in the communities out there.” When invited by the court to
discuss a factor in his favor, Severino responded that he had come to the United
States from poverty at the age of 18. Though the court acknowledged that
Severino was hardworking and dedicated to his family, it went on to state that after
choosing to become a U.S. citizen, he had violated U.S. laws.
The court stated that it had considered the 18 U.S.C. § 3553(a) factors, the
parties’ arguments, and the PSI, noting that the duration of the conduct, the amount
of loss, deterrence, and lack of remorse were important considerations. With
respect to deterrence, the court stated that “[a]pparently, these people don’t care
about this,” but that they “need[ed] to care” because Severino’s conduct
undermined the tax system. The court ultimately sentenced Severino to a term of
41 months’ imprisonment plus two years.
II.
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We review a failure to give a requested jury instruction for abuse of
discretion, which occurs only where the requested instruction: “(1) was correct;
(2) was not substantially covered by a charge actually given; and (3) dealt with
some point in the trial so important that failure to give the requested instruction
seriously impaired the defendant’s ability to conduct his defense.” United States v.
House, 684 F.3d 1173, 1196 (11th Cir. 2012) (citation omitted). “Jury instructions
are subject to harmless error review.” Id. (quoting United States v. Webb, 655 F.3d
1238, 1249 n.8 (11th Cir. 2011)). An error is harmless if we are satisfied “beyond
a reasonable doubt that the error complained of did not contribute to the verdict
obtained.” Id. (citation omitted). “District courts have broad discretion in
formulating jury instructions provided that the charge as a whole accurately
reflects the law and the facts.” United States v. Arias, 984 F.2d 1139, 1143 (11th
Cir. 1993) (citation and internal quotation marks omitted).
Section 7206(2) of Title 26 makes it unlawful for any person to willfully aid
or assist in the preparation or presentation of documents under the internal revenue
laws, including tax returns, that are fraudulent or false as to any material matter.
26 U.S.C. § 7206(2). In the context of federal criminal tax statutes, including
§ 7206, the standard for willfulness has been recited as the “voluntary, intentional
violation of a known legal duty.” See, e.g., Cheek v. United States, 498 U.S. 192,
201 (1991) (stating that “the standard for the statutory willfulness requirement is
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the ‘voluntary, intentional violation of a known legal duty’”) (citation omitted);
United States v. Pomponio, 429 U.S. 10, 12 (1976) (per curiam) (stating that
“‘willfully’ in these statutes generally connotes a voluntary, intentional violation of
a known legal duty”) (citation omitted); United States v. Brown, 548 F.2d 1194,
1199 (5th Cir. 1977) (“In the misdemeanor and felony tax evasion statutes (26
U.S.C.A. ss 7201 to 7207, inclusive) the word ‘willfully’ generally connotes a
voluntary, intentional violation of a known legal duty.”). The Supreme Court has
noted that given our “complex tax system,” this interpretation of willfulness
protects “taxpayers who earnestly wish to follow the law” and reflects Congress’s
intent to “construct penalties that separate the purposeful tax violator from the
well-meaning, but easily confused, mass of taxpayers.” United States v. Bishop,
412 U.S. 346, 360–61 (1973).
In Pomponio, a case involving the filing of false tax returns in violation of
26 U.S.C. § 7206(1), the district court instructed the jury that a willful act was one
done “voluntarily and intentionally and with the specific intent to do something
which the law forbids, that is to say with the bad purpose either to disobey or to
disregard the law,” and that good motive alone was never a defense where the act
done was a crime. Pomponio, 429 U.S. at 11 (parentheses omitted). The Fourth
Circuit reversed, concluding that § 7206(1) required a finding of evil motive. Id.
In reversing the Fourth Circuit, the Supreme Court reiterated that willfully simply
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meant “a voluntary, intentional violation of a known legal duty” in the tax context.
Id. at 12. The Court ultimately held that the district court had “adequately
instructed the jury on willfulness.” Id. at 13.
Though they are not binding, our pattern jury instructions are a valuable
resource. See United States v. Dohan, 508 F.3d 989, 994 (11th Cir. 2007) (per
curiam). The pattern instructions contain two alternative willfulness instructions.
The first, B9.1A, states that “willfully” means that an act “was committed
voluntarily and purposely, with the intent to do something the law forbids; that is,
with the bad purpose to disobey or disregard the law.” Eleventh Circuit Pattern
Jury Instructions (Criminal Cases) Basic Instruction 9.1A (2016). The instruction
further states that although the person must act with intent to do something the law
forbids, he need not be aware of the specific law or rule that he is violating. Id.
The second instruction, B9.1B, states that “willfully” means that an act “was done
voluntarily and purposely with the specific intent to violate a known legal duty,
that is, with the intent to do something the law forbids.” Id., Basic Instruction
9.1B. The commentary to B9.1A notes that while the first instruction is
appropriate in most cases where willfulness is an element, the second is
appropriate in tax and currency-structuring cases, which typically involve “highly
technical statutes that present the danger of ensnaring individuals engaged in
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apparently innocent conduct.” See id., Annotations and Comments to Basic
Instruction 9.1A (quoting Bryan v. United States, 524 U.S. 184, 194 (1998)).
The specific offense instruction for § 7206(2) lists five elements that the
government must prove at trial. Id., Offense Instruction 109.2. The last element
states that the defendant must have acted “with the intent to do something the
Defendant knew the law forbids.” Id. The commentary to this instruction notes
that a willful violation of the statute “has been defined as the voluntary, intentional
violation of a known legal duty.” Id., Annotations and Comments to Offense
Instruction 109.2. But it also states that because the specific offense instruction
“incorporates this definition of willfulness in its elements, the committee does not
believe that it is necessary to also include Basic Instruction 9.1B for this offense.”
Id.
Here, the district court concluded that pattern instruction B9.1B was
inapplicable because Severino’s offense was not particularly complex. It therefore
gave the equivalent of instruction O109.2 for the offense elements and the
equivalent of instruction B9.1A for willfulness. Severino contends that the court’s
failure to give instruction B9.1B was an abuse of discretion.
Severino is correct that in the context of criminal tax statutes, willfulness is
generally defined as the “voluntary, intentional violation of a known legal duty.”
See, e.g., Cheek, 498 U.S. at 201; Pomponio, 429 U.S. at 12; Bishop, 412 U.S. at
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360; Brown, 548 F.2d at 1199; see also Eleventh Circuit Pattern Jury Instructions
(Criminal Cases), Annotations and Comments to Basic Instruction 9.1A (indicating
that this definition is appropriate in tax cases). Nevertheless, the requested
instruction was substantially covered by the given offense instruction, which was
modeled on instruction O109.2 and required the government to prove that Severino
acted “with the intent to do something [he] knew the law forbids.” The
commentary to pattern offense instruction 109.2 specifically states that it
incorporates the definition of willfulness as the “voluntary, intentional violation of
a known legal duty” into its elements, and therefore instruction B9.1B is
unnecessary. See Eleventh Circuit Pattern Jury Instructions (Criminal Cases),
Annotations and Comments to Offense Instruction 109.2. Because Severino’s
requested instruction was subsumed into the offense instruction, the district court
did not abuse its discretion in declining to issue it. See House, 684 F.3d at 1196.
In addition to the offense instruction, the district court also gave the
equivalent of instruction B9.1A to define willfulness. The commentary to the
pattern jury instructions indicates that B9.1A contains a lesser mens rea than
B9.1B. See Eleventh Circuit Pattern Jury Instructions (Criminal), Annotations and
Comments to Basic Instruction 9.1A. But Severino does not specifically argue that
the jury was misled by this additional instruction. In addition, any error in giving
the instruction was harmless, as it still communicates that willfully means to act
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“voluntarily and purposely, with the intent to do something the law forbids; that is
with the bad purpose to disobey or disregard the law.” This formulation is not
substantially different from the offense instruction, and the Supreme Court
concluded that similar language was sufficient to instruct the jury on willfulness in
Pomponio. See Pomponio, 429 U.S. at 11, 13.
III.
We review challenges to the sufficiency of the evidence de novo, viewing
the evidence in the light most favorable to the government and drawing all
reasonable inferences and credibility choices in favor of the verdict. United States
v. Klopf, 423 F.3d 1228, 1236 (11th Cir. 2005). “Evidence is sufficient to support
a conviction if a reasonable trier of fact could find that the evidence established
guilt beyond a reasonable doubt.” United States v. Guevara, 894 F.3d 1301, 1307
(11th Cir. 2018) (quoting United States v. Bowers, 811 F.3d 412, 424 (11th Cir.
2016)). To establish guilt beyond a reasonable doubt, the evidence need not
“exclude every reasonable hypothesis of innocence,” and the jury is “free to choose
among reasonable constructions of the evidence.” United States v. Cruz-Valdez,
773 F.2d 1541, 1545 (11th Cir. 1985) (en banc) (citation omitted).
A.
As noted above, 26 U.S.C. § 7206(2) makes it unlawful for any person to
willfully aid or assist in the preparation of a tax return that is fraudulent or false as
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to any material matter. 26 U.S.C. § 7206(2). In connection with his challenge to
the district court’s failure to give the jury instruction that he requested, Severino
challenges only the element of willfulness, arguing that the government failed to
prove the intentional violation of a known legal duty. While the government
contends that this standard does not apply, it alternatively asserts that it did show
that Severino violated a known legal duty, pointing to an attestation that every
taxpayer or preparer must sign to verify that a return is accurate. But although
various tax returns were introduced into evidence, there is no indication that the
attestation—which Severino did not sign on any return—was ever called to the
jury’s attention.
Nevertheless, there is substantial evidence that Severino acted with the
requisite level of willfulness. The given offense instruction, which subsumed the
willfulness instruction that Severino requested, required the government to show
that Severino acted “with the intent to do something [he] knew the law forbids.”
The government’s expert testified that in claiming the American Opportunity
Credit, education expenses had to be paid in the same tax year for which the credit
was claimed and that Form 8863 was supposed to be attached to the tax return.
The form required the name of the student and educational institution attended, and
the amount of expenses incurred—information that witnesses later testified was
never provided to Severino and was falsified. Viewed in the light most favorable
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to the government, a reasonable juror could find beyond a reasonable doubt that
Severino acted “with the intent to do something [he] knew the law forbids.”
B.
To prove wire fraud, the government must show that the defendant:
(1) intentionally participated in a scheme or artifice to defraud a person of money
or property; and (2) used or caused to be used a wire to execute the scheme or
artifice. United States v. Langford, 647 F.3d 1309, 1320 (11th Cir. 2011); 18
U.S.C. § 1343. Although the term “scheme to defraud” is “incapable of precise
definition,” it includes “any pattern or cause of action, including false and
fraudulent pretenses and misrepresentations, intended to deceive others in order to
obtain something of value.” United States v. De La Mata, 266 F.3d 1275, 1298
(11th Cir. 2001) (citation omitted).
Severino contends that the evidence was insufficient to establish a “scheme
to defraud” because his conduct was not sufficiently sophisticated. But neither the
wire fraud statute nor this Court requires sophistication to establish a scheme to
defraud. See 18 U.S.C. § 1343; De Le Mata, 266 F.3d at 1298. Here, the
government linked Severino to hundreds of tax returns claiming the American
Opportunity Credit without the requisite documentation, and it presented testimony
showing that Severino had claimed the credit on taxpayers’ behalf without any
supporting information or instruction. In light of this evidence, a reasonable juror
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could find beyond a reasonable doubt that Severino engaged in a pattern of
fraudulent conduct “intended to deceive others in order to obtain something of
value,” regardless of his lack of sophistication. See De La Mata, 266 F.3d at 1298.
C.
To prove aggravated identity theft, the government must show that the
defendant: “(1) knowingly transferred, possessed, or used; (2) the means of
identification of another person; (3) without lawful authority; (4) during and in
relation to a felony enumerated in § 1028A(c),” including wire fraud. United
States v. Barrington, 648 F.3d 1178, 1192 (11th Cir. 2011) (citation omitted); 18
U.S.C. § 1028A(a)(1). The government may establish that a defendant acted
“without lawful authority” by showing that an individual’s identity was used
without permission or for an unlawful purpose. See United States v. Zitron, 810
F.3d 1253, 1260 (11th Cir. 2016) (per curiam).
Here, the evidence was sufficient to support Severino’s convictions on both
aggravated identity theft counts. With respect to Count 16, Severino contends that
because J.L.M. did not testify, there was insufficient evidence to conclude that he
used J.L.M.’s identity without lawful authority. But Oviedo—the individual on
whose tax return J.L.M. was listed as a dependent—testified that he did not know
J.L.M., did not tell Severino that J.L.M. was his niece, did not provide J.L.M.’s
Social Security number, and did not incur any of the education expenses claimed
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on his return. Viewing this evidence in the light most favorable to the government,
a reasonable juror could find beyond a reasonable doubt that Severino used
J.L.M.’s Social Security number without lawful authority because it was used for
an improper purpose. See Zitron, 810 F.3d at 1260.
As to Count 17, Severino contends that a jury could not conclude that he
used Mestre’s identity without lawful authority. But Count 17 of the superseding
indictment refers to the use of Mestre’s identity in January 2016, which
corresponds to Llerena’s 2015 return. Mestre testified that he was not aware that
he was listed as a dependent on Llerena’s 2015 return, and Llerena herself testified
that she had instructed Severino not to list Mestre as a dependent. Based on this
testimony, a reasonable juror could find beyond a reasonable doubt that Severino
used Mestre’s Social Security number without lawful authority.
IV.
We review the reasonableness of a sentence for an abuse of discretion, first
examining whether the district court committed any significant procedural error and
then whether the sentence is substantively reasonable under the totality of the
circumstances. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010); see
also United States v. Wenxia Man, 891 F.3d 1253, 1275 (11th Cir. 2018) (addressing
argument that district court improperly considered defendant’s national origin as a
matter of substantive reasonableness).
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The district court must impose a sentence that is “sufficient, but not greater
than necessary, to comply with the purposes” in § 3553(a)(2), including the need to
reflect the seriousness of the offense, promote respect for the law, provide just
punishment, deter criminal conduct, and protect the public. 18 U.S.C.
§ 3553(a)(2). The court must also consider the nature and circumstances of the
offense, the history and characteristics of the defendant, the kinds of sentences
available, the guideline range, pertinent policy statements of the Sentencing
Commission, the need to avoid unwanted sentencing disparities, and the need to
provide restitution. Id. § 3553(a)(1), (3)–(7). Lack of remorse is relevant to
several of these factors, including the defendant’s characteristics and the need to
promote respect for the law and protect the public. United States v. McNair, 605
F.3d 1152, 1231 (11th Cir. 2010). A sentence is substantively unreasonable if a
district court: “(1) fails to afford consideration to relevant factors that were due
significant weight, (2) gives significant weight to an improper or irrelevant factor,
or (3) commits a clear error of judgment in considering the proper factors.” United
States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015) (citation omitted).
“The weight to be accorded any given § 3553(a) factor is a matter committed to the
sound discretion of the district court.” United States v. Clay, 483 F.3d 739, 743
(11th Cir. 2007) (citation omitted). Still, “unjustified reliance” on any one factor
“may be a symptom of an unreasonable sentence.” United States v. Pugh, 515
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F.3d 1179, 1191 (11th Cir. 2008). “[W]e will remand for resentencing if we are
left with the definite and firm conviction that the district court committed a clear
error of judgment in weighing the § 3553(a) factors by arriving at a sentence that
lies outside the range of reasonable sentences dictated by the facts of the case.”
Clay, 483 F.3d at 743 (citation omitted).
Race, sex, national origin, creed, religion, and socio-economic status are
factors that are “not relevant in the determination of a sentence.” U.S.S.G.
§ 5H1.10. Regardless of length, a sentence may be unreasonable “if it was
substantially affected by the consideration of impermissible factors.” Clay, 483
F.3d at 745.
Severino’s sentence is not substantively unreasonable. The district court did
not unjustifiably rely on deterrence or fail to give adequate consideration to the
factors that Severino emphasizes—specifically, his lack of sophistication and lack
of criminal history. While the court emphasized the need for deterrence, it was
within the district court’s discretion to assign this factor weight, and the record
shows that the other § 3553(a) factors were also considered—particularly the
duration of the conduct, the amount of loss, and Severino’s lack of remorse. 18
U.S.C. § 3553(a)(1), (2)(A); Clay, 483 F.3d at 743. Further, the record shows that
the district court did consider Severino’s lack of sophistication and lack of criminal
history. The court noted that Severino’s fraud was not sophisticated, reviewed the
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PSI detailing his lack of formal education, and indicated that Severino’s lack of
criminal history had already been factored into his guideline range. That the court
chose to assign greater weight elsewhere was not an abuse of discretion. See Clay,
483 F.3d at 743.
Further, the district court did not improperly consider Severino’s ethnicity or
immigrant status in imposing sentence. When invited to discuss any factor in his
favor, Severino referenced the fact that he had immigrated to the United States and
worked hard to rise from poverty. The district court referred to Severino’s
immigrant status only to reject that argument, noting that despite becoming a U.S.
citizen, he had chosen to violate the law. This short exchange is insufficient to
show that Severino’s sentence was “substantially affected by the consideration of
impermissible factors.” Id. at 745. In addition, though the court referred to the
conduct at issue “going on in the communities out there” and stated that “these
people don’t care,” there is nothing to suggest that the court was specifically
referring to a particular immigrant community, as Severino contends.
V.
For the reasons stated above, Severino’s convictions and sentence are
AFFIRMED.