USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-2123
UNITED STATES OF AMERICA,
Appellant,
v.
ANTHONY G. OLBRES and SHIRLEY A. OLBRES,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Karen Quesnel, Attorney, Tax Division, United States Dep't
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of Justice, with whom Loretta C. Argrett, Assistant Attorney
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General, Robert E. Lindsay and Alan Hechtkopf, Attorneys, Tax
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Division, and Paul M. Gagnon, United States Attorney, were on
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brief, for the United States.
Terry Philip Segal, with whom Matthew H. Feinberg, Matthew
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A. Kamholtz, Segal & Feinberg, Steven M. Gordon, and Shaheen,
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Cappiello, Stein & Gordon were on joint brief, for appellees.
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July 26, 1995
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SELYA, Circuit Judge. In 1989, an employee of the
SELYA, Circuit Judge.
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Internal Revenue Service (IRS) noticed a Rolls Royce belonging to
the defendants, Anthony and Shirley Olbres, parked outside a
restaurant in Exeter, New Hampshire. The presence of so opulent
a vehicle in so bucolic a setting piqued the taxman's interest.
He initiated an investigation that led, in succession, to an
audit, an indictment, a trial, and a conviction for income tax
evasion pursuant to a jury verdict.1 The district court then
trumped the jury's verdict, granting the defendants' motions for
judgments of acquittal. See United States v. Olbres, Cr. No. 93-
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27-1-2-M (D.N.H. Sept. 30, 1994) (D. Ct. Op.).2 The government
appeals. We reinstate the convictions.
I. BACKGROUND
I. BACKGROUND
We start by relating certain (essentially
uncontradicted) facts that serve to put the appeal into initial
perspective. In 1974, the Olbreses he an industrial designer,
she a schoolteacher destined to become a self-taught bookkeeper
launched a proprietorship, Design Consultants (DC), to conceive,
construct, and erect exhibit booths for trade shows. At first,
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1The statute of conviction provides in relevant part:
Any person who willfully attempts in any
manner to evade or defeat any tax imposed by
[the Internal Revenue Code] or the payment
thereof shall, in addition to other penalties
provided by law, be guilty of a felony . . .
26 U.S.C. 7201 (1988).
2Although the district court's thoughtful opinion is
unpublished, the interested reader can locate it at 1994 WL
543520.
2
the proprietors comprised the entire work force. The business
grew steadily, and by 1987 DC employed 23 persons and had
revenues in excess of $1,900,000. Despite the phenomenal growth
of the business, Shirley Olbres continued to handle the books,
toiling part-time, mostly at home. Her working materials
consisted of an invoice log (in which she recorded bills sent and
payments received), and three journals reflecting, respectively,
cash receipts, cash disbursements, and petty cash.
Beginning in 1976, the defendants retained the services
of an accountant, Wilson Dennett. Dennett compiled income tax
returns and financial statements, but did not perform bookkeeping
or kindred services. He prepared the tax returns in reliance on
information supplied by the defendants. For the tax year at
issue on this appeal 1987 Shirley Olbres drafted a summary of
the defendants' books and records for Dennett's use. She and her
husband then met with Dennett to answer questions. When Dennett
completed the return, the defendants came to his office and
signed it.
The defendants maintained various bank accounts during
1987. These included business checking and savings accounts at
Indian Head Bank (IHB). Defendants deposited most of their
business receipts into the business checking account, but
occasionally deposited business receipts into the business
savings account. While Shirley Olbres recorded all sums
deposited into the business checking account in the cash receipts
journal, she did not make comparable entries showing deposits
3
made to the business savings account. During the same time
frame, the defendants also maintained payroll and petty cash
accounts at a second bank, and a rent-receipts account in the
name of Seabrook Properties at yet a third financial institution.
The IRS started its investigation into the defendants'
tax returns in 1989. Revenue Agent Leonard Kaply pulled the
laboring oar. He determined, inter alia, that the defendants had
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substantially underreported their income on their joint federal
income tax returns for the years 1986 through 1988. For 1987,
Kaply's audit indicated that the defendants had failed to report
nearly $750,000 in income from three sources: (1) business
receipts deposited directly into the business savings account and
not recorded in the cash receipts journal; (2) rebates from a
transportation company that had contracted with DC to move trade
show booths from place to place;3 and (3) certain income from
rental property. In the course of the audit, the defendants gave
Agent Kaply the cash receipts journal, but claimed to have
misplaced the invoice log and the passbook for the business
savings account (either of which would have revealed much of the
unreported income). It was only when the IRS issued a summons to
IHB that it discovered the business savings account, with its
trove of unreported funds.
The IRS concluded that the defendants willfully failed
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3For no easily explicable reason, these rebates had been
deposited into the Seabrook Properties account, omitted from the
summary prepared by Mrs. Olbres for Dennett's use, and not
mentioned in the defendants' ensuing dialogue with Dennett.
4
to report substantial amounts of income on their 1986, 1987, and
1988 federal tax returns ($150,954 in 1986, $748,991 in 1987, and
$175,432 in 1988). The defendants conceded the underreporting,
but denied criminal responsibility, saying that they lacked any
intent to defraud.4 A federal grand jury returned a three-count
indictment charging the defendants with willfully attempting to
evade income tax for those three years. The case was tried to a
jury. The defendants moved for judgments of acquittal at the end
of the government's case, and again when both sides had rested.
See Fed. R. Crim. P. 29(a). The district court denied the first
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set of motions and reserved decision on the second set. See Fed.
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R. Crim. P. 29(b). On January 24, 1994, the jury reached a split
decision: it found the defendants not guilty on count 1 (1986)
and count 3 (1988), but guilty on count 2 (1987).
After a gestation period of nearly nine months, the
district court, acting in pursuance of the earlier Rule 29(b)
reservation, granted the defendants' motions for judgments of
acquittal on count 2. The government then filed this timely
appeal.
II. ANALYSIS
II. ANALYSIS
Our analysis of this case is partitioned into three
segments. First, we limn the standard of review. Second, we
examine the elements of the offense of conviction and the
sufficiency of the evidence. Third, we explain why we find the
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4The defendants placed much of the onus on their accountant,
Dennett, who died prior to the trial. For the most part, his
knowledge of the facts died with him.
5
district court's analysis unpersuasive.
A. Standard of Review.
A. Standard of Review.
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Expressing the standard for judicial review of a claim
of evidentiary insufficiency in a criminal case is a
straightforward exercise. If the evidence presented, taken in
the light most flattering to the prosecution, together with all
reasonable inferences favorable to it, permits a rational jury to
find each essential element of the crime charged beyond a
reasonable doubt, then the evidence is legally sufficient. See
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Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.
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Gifford, 17 F.3d 462, 467 (1st Cir. 1994); United States v.
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Castro-Lara, 970 F.2d 976, 979 (1st Cir. 1992), cert. denied, 113
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S. Ct. 2935 (1993). In evaluating sufficiency, both direct and
circumstantial evidence are accorded weight. See, e.g., United
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States v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994). So long as
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the evidence, taken as a whole, warrants a judgment of
conviction, "it need not rule out other hypotheses more congenial
to a finding of innocence." Gifford, 17 F.3d at 467.
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When, as now, a criminal defendant mounts a sufficiency
challenge, all the evidence, direct and circumstantial, is to be
viewed from the government's coign of vantage. Thus, the trial
judge must resolve all evidentiary conflicts and credibility
questions in the prosecution's favor; and, moreover, as among
competing inferences, two or more of which are plausible, the
judge must choose the inference that best fits the prosecution's
theory of guilt. See United States v. Taylor, 54 F.3d 967, 974
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6
(1st Cir. 1995); United States v. Rothrock, 806 F.2d 318, 320
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(1st Cir. 1986).
The granting of a motion for judgment of acquittal is
subject to de novo review. See United States v. Kirvan, 997 F.2d
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963, 967 (1st Cir. 1993). Like the trial court, "we scrutinize
the evidence in the light most compatible with the verdict,
resolve all credibility disputes in the verdict's favor, and then
reach a judgment about whether a rational jury could find guilt
beyond a reasonable doubt." Taylor, 54 F.3d at 974.
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B. Sufficiency of the Evidence.
B. Sufficiency of the Evidence.
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In this instance, our assignment is simplified.
Because the defendants do not dispute that they signed the 1987
tax return and that they substantially understated their income
in the process, the question of guilt reduces to whether the
underreporting occurred willfully, that is, whether it
constituted "a voluntary, intentional violation of a known legal
duty," United States v. Pomponio, 429 U.S. 10, 12 (1976) (per
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curiam) (citations omitted). The trial focused on this narrow
issue. The government contended that the defendants deliberately
understated their 1987 income, while the defendants who claimed
to have signed the return without reading it contended that
they were guilty only of inadvertence, aggravated by the hiring
of a maladroit accountant.
In a tax evasion case in which the defendants assert
that blind reliance on their accountant, not criminal intent,
caused an underreporting, the critical datum is not whether the
7
defendants ordered the accountant to falsify the return, but,
rather, whether the defendants knew when they signed the return
that it understated their income. See Rothrock, 806 F.2d at 321.
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So here: if the evidence introduced at trial, taken in a pro-
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government light, permitted the jury to infer that the defendants
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(a) were aware of the contents of their return, and (b) knew that
their reportable income significantly exceeded the income
reflected therein, then the jury lawfully could find that the
defendants acted willfully, and, hence, violated 26 U.S.C.
7201. See, e.g., United States v. Gaines, 690 F.2d 849, 855
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(11th Cir. 1982). We turn to this two-part inquiry, and then
buttress the results with additional evidence of willfulness.
1. Knowledge of the Return's Contents. This facet of
1. Knowledge of the Return's Contents.
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the inquiry need not occupy us for long. A jury may permissibly
infer that a taxpayer read his return and knew its contents from
the bare fact that he signed it. See United States v. Drape, 668
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F.2d 22, 26 (1st Cir. 1982) (holding that the defendant's
signature on his return sufficed to establish knowledge of
incorrect contents); United States v. Romanow, 505 F.2d 813, 814
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(1st Cir. 1974) (dismissing taxpayer's denial that he had read
tax form, and stating that "it is clear that a jury could
disbelieve him and conclude from nothing more than the presence
of his uncontested signature that he had in fact read" the
document).
Here, moreover, the jury had before it other
circumstantial evidence indicating that the defendants knew the
8
contents of their return. Dennett's wife, who worked with him,
testified that when Dennett prepared a tax return for signature,
the return was bundled into a packet with a cover sheet that
summarized its contents. The bottom portion of the cover sheet
contained the bill for the tax preparation services. The
defendants testified that it was their habit to go to Dennett's
office, sign the completed return, and pay the bill. The jury
could reasonably infer that, in order to have paid the
accountant's bill, the defendants must have read the portion of
the cover sheet that detailed the return's contents.
2. Knowledge of the Understatement. The most
2. Knowledge of the Understatement.
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compelling proof that the defendants knew that the figure
reported on their 1987 return substantially understated their
true income is the product of simple arithmetic. Tama Mitchell,
a government witness, analyzed the defendants' 1987 return and
found that the disposable funds available to them in that year,
based on the information contained in the return, totalled
$24,695. Mitchell further testified that the defendants made
expenditures of more than $620,656 during the year.5 In the
same period, their overall savings increased by $334,003. After
subtracting net deposits of loan proceeds, Mitchell's analysis
demonstrated that the defendants' combined expenditures and
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5Mitchell's computations did not include all the defendants'
annual expenditures, but established a baseline by concentrating
on major cash purchases during the year, e.g., an outlay of
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$158,000 in June to purchase a Rolls Royce Corniche convertible;
an outlay of $32,450 in August to purchase a Range Rover; and an
infusion of roughly $140,000 to a brokerage account.
9
accretions to savings in 1987 exceeded the cash available to
them, according to their tax return, by $580,989.
To be sure, the evidence pertaining to the defendants'
lavish spending is circumstantial and suggestive, not direct and
irrefutable. Yet, the arithmetic furnishes a sturdy
infrastructure capable of supporting a reasonable inference that
the defendants must have been aware that their 1987 return
substantially underreported their income. See O'Brien, 14 F.3d
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at 706-07 (holding that, despite an absence of direct evidence,
circumstantial evidence adequately supported jury's inference of
guilty knowledge in fraud case); Castro-Lara, 970 F.2d at 981
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(explaining that "circumstantial evidence, in and of itself, is
often enough to ground a conviction"); United States v. Hurley,
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957 F.2d 1, 4 (1st Cir.) (stating that, in proving tax evasion,
"the government [does] not need to show direct evidence of tax
motivation" so long as the jury has a sufficient circumstantial
basis for inferring willfulness), cert. denied, 113 S. Ct. 60
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(1992). Even if one were to accept the defendants' self-serving
hypothesis that the accountant's incompetence sparked the myriad
misstatements embedded in the return, the jury could still
reasonably infer that, when the defendants signed the return,
they must have gained an awareness that the numbers could not
possibly be accurate. See Gaines, 690 F.2d at 855 (holding that
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glaring inaccuracies in figures can support a reasonable
inference of knowledge); see also Drape, 668 F.2d at 26 ("Intent
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may be established where a taxpayer `chooses to keep himself
10
uninformed as to the full extent that [the return] is
insufficient.'") (quoting Katz v. United States, 321 F.2d 7, 10
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(1st Cir.), cert. denied, 375 U.S. 903 (1963)).
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The proposition that the defendants knew their return
understated their income derives support from other evidence as
well. For example, during 1986, Anthony Olbres (who had
unrestricted access to DC's books and records) provided fiscal
and marketing information to Dennett so that the latter could
prepare a financial statement in connection with a prospective
sale of the business. When completed, the financial statement
projected 1987 revenues in the amount of $1,976,000. The
projection proved to be prophetic DC's actual 1987 gross
receipts totalled $2,014,059 but the defendants reported gross
receipts on the 1987 tax return in a far smaller amount
($1,265,069). Based on this progression of events, a rational
jury could plausibly infer that Anthony Olbres had sufficient
knowledge of DC's financial matters to recognize the huge
discrepancy between projected revenues and reported revenues, and
to appreciate the significance of the gap.6 Likewise, the jury
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6The district court suggested that Anthony Olbres'
participation in the preparation of the 1987 projections tended
to be exculpatory rather than incriminatory, because it showed
that the defendants reposed great confidence in their accountant.
See D. Ct. Op. at 31. Though such an inference may be
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permissible, it is not compelled; and, given the method of Rule
29, it is the jury's choice between alternative inferences, not
the trial judge's choice, that must control. See O'Brien, 14
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F.3d at 707 (warning that judges must not "usurp the jury's
province" of choosing between alternative inferences); United
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States v. Guerrero-Guerrero, 776 F.2d 1071, 1075 (1st Cir. 1985)
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(similar), cert. denied, 475 U.S. 1029 (1986).
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11
could infer from Shirley Olbres' position as DC's bookkeeper that
she, too, must have recognized the massive understatement of
income.
3. Other Evidence of Willfulness. In this case, the
3. Other Evidence of Willfulness.
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jury heard other evidence capable of supporting a permissible
inference that the defendants acted willfully in underreporting
their income. For one thing, the defendants themselves from time
to time bypassed their business checking account and deposited
substantial amounts of money (including approximately $145,000 in
payments from a single customer, Digital Equipment Corp.)
directly into their business savings account. They knew that
these payments constituted income, yet they neither recorded them
in the cash receipts journal nor reported them on their 1987 tax
return. To make matters worse, the two source materials that
most easily could have identified the unreported income the
invoice log and the passbook for the business savings account
were withheld from the defendants' accountant; and,
coincidentally, the same source materials conveniently
disappeared during the IRS audit.7 While the defendants
maintained other books and records from which the existence of
these funds could perhaps be gleaned, see D. Ct. Op. at 31, it is
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readily evident that a jury plausibly could infer from these
facts that the defendants clumsily attempted to conceal income
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7Joyce Wildes, a Dennett employee assigned to review the
defendants' taxes, testified that she was not provided with
either the log or the passbook, and Agent Kaply discovered the
existence of the business savings account only by obtaining
information directly from IHB.
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from both their tax preparer and their government.
Of course, the defendants' counter-argument that the
evidence indicates nothing more than that they were remarkably
slipshod in their business practices is also plausible.
Withal, the option to choose between these inferences belonged to
the jury, not the judge, see United States v. Guerrero-Guerrero,
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776 F.2d 1071, 1075 (1st Cir. 1985), cert. denied, 475 U.S. 1029
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(1986), and the jury had a perfect right to reject the
defendants' counter-argument and draw the inference urged by the
government. See O'Brien, 14 F.3d at 707; United States v.
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Quejada-Zurique, 708 F.2d 857, 859 (1st Cir.), cert. denied, 464
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U.S. 855 (1983). After all, "if the evidence can be construed in
various reasonable alternatives, the jury is entitled to freely
choose from among them." United States v. Smith, 680 F.2d 255,
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259 (1st Cir. 1982), cert. denied, 459 U.S. 1110 (1983).
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The evidence anent the defendants' income from rental
property also bolstered the inference of willfulness. During
1987, the defendants owned various properties and rented them to
tenants. In 1987, Johnson Matthey Catalog Company (J/M) rented
space from the defendants in Seabrook, New Hampshire, at a rate
of $48,000 per annum. J/M sent a $4,000 rent check to the
defendants' home every month. Shirley Olbres deposited each rent
check, when received, into the Seabrook Properties account.
Although J/M paid the full $48,000 during 1987, the defendants
informed Dennett that they had garnered only $30,000 in rental
income from all their real estate. Thus, their 1987 return
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failed to include $18,000 from the avails of the J/M tenancy, and
also failed to include $3,890 in rental income referable to a
property known as "the barn." It is beyond serious question that
the defendants' action in pegging the J/M lease proceeds at
$30,000 in the summary they gave to their accountant, coupled
with their failure to list any rental income referable to the
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barn, could ground the requisite inference of criminal intent.
We think, too, that the defendants' failure to report
sums received as rebates from Mayflower Transit Company
(Mayflower) gives rise to a founded inference of willfulness. DC
retained Mayflower to ferry exhibit booths to and from trade
shows. The contract between the parties stipulated that
Mayflower would furnish transportation services to DC at
customary tariff rates, but then remit 20% of the amounts
actually paid. The rebate would be calculated monthly, based on
payments from DC to Mayflower. Pursuant to this arrangement,
Mayflower remitted $96,671 in 1987, but, for some reason, failed
to issue a 1099 form memorializing the payments. The defendants
did not report any of this money as income on their 1987 return
(despite the fact that they deducted 100% of the tariff charges
that they paid in the first instance).
Shirley Olbres deposited each of the eleven rebate
checks that DC received from Mayflower during the year into the
Seabrook Properties account even though that account had no
direct connection with DC or its business. At trial, she
testified that she did not know that the rebates constituted
14
income. Her husband, however, admitted that he was aware of the
rebates' taxable character. We believe that, on this record, a
rational jury could infer that the concealment of the rebates
resulted not from ignorance or inadvertence but from a conscious
decision on the defendants' part to take criminal advantage of
Mayflower's failure to issue the required 1099 form.
4. Recapitulation. To sum up, the record, read
4. Recapitulation.
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favorably to the verdict, supports the following findings: (1)
the defendants signed the 1987 tax return; (2) they knew the
contents of the return at the time they signed it, and they knew
that it significantly understated their taxable income; (3) they
knew their business had made substantially more money than the
return reflected; (4) they had received revenues during the tax
year which they knew were taxable, such as business receipts and
transportation rebates, yet they neither deposited those revenues
in the business checking account nor recorded their receipt in
the usual manner, but, instead, diverted the revenues to other
bank accounts; (5) they deliberately understated the amounts of
rental income received when transmitting data to their accountant
preliminary to the accountant's preparation of their tax return;
and (6) they withheld materials from the accountant (and, later,
from the IRS auditor) that would have pointed to the existence
and extent of the undeclared income. Notwithstanding the
defendants' denials and regardless of the exculpatory evidence
that lurked in the record, these findings enabled a rational jury
to conclude, beyond a reasonable doubt, that the defendants were
15
guilty of income tax evasion for the year 1987.
C. The Judgment of Acquittal.
C. The Judgment of Acquittal.
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The district court, steadfast in its desire to ensure
the integrity of the reasonable doubt standard, undertook a
painstakingly thorough examination of the record. The court
conceded that the government's case was not "unpersuasive," D.
Ct. Op. at 35, that a jury "could rationally reach" the
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conclusion that the defendants willfully attempted to defraud the
government in respect to their 1987 taxes, id., and that, if the
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court were to determine the existence of willfulness by means of
a preponderance test, it would find for the government, see id.
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at 37. Nevertheless, the court entered judgment notwithstanding
the verdict on the ground that the proof did not permit a
finding, beyond a reasonable doubt, that the defendants willfully
filed a false tax return. To the court's way of thinking, the
defendants had articulated a "hypothesis of innocence
(negligence, incompetence, inattention, and reasonable reliance
on the family's long-time certified public accountant) . . .
[that was] sufficiently reasonable and sufficiently strong and
sufficiently credible that a rational trier of fact . . . must
necessarily entertain a reasonable doubt about defendants' guilt
. . . ." Id. at 37-38.
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Our independent review of the record convinces us that
the court, while giving lip service to the "viewpoint" principle
(which holds that the evidence must be viewed, for the purpose of
an acquittal motion, in the light most flattering to the
16
government), subverted the principle by isolating each piece of
evidence and determining whether that evidence, standing alone,
gave rise to a powerful enough inference of willfulness to allay
any reasonable doubt about the defendants' guilt. In the
bargain, the court appears to have misunderstood the interplay
between the viewpoint principle and the reasonable doubt
standard.
The lower court's handling of the rent-receipts
evidence illustrates our concerns. In discussing this evidence,
the court acknowledged that an inference adverse to the
defendants could rationally be drawn, but concluded that this
inference was not "of sufficient persuasive value to establish
[the defendants'] knowing intent to evade taxes, beyond a
reasonable doubt." D. Ct. Op. at 33. But few, if any,
circumstantial evidence cases can survive this sort of
balkanization. For purposes of Rule 29, a broader perspective
must be employed to gauge the prosecution's mettle. Under the
viewpoint principle, a jury charged with determining an accused's
guilt or innocence is entitled to consider the evidence as a
seamless whole. Jurors are "not required to examine the evidence
in isolation, for `individual pieces of evidence, insufficient in
themselves to prove a point, may in cumulation prove it. The sum
of an evidentiary presentation may well be greater than its
constituent parts.'" United States v. Ortiz, 966 F.2d 707, 711
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(1st Cir. 1992) (quoting Bourjaily v. United States, 483 U.S.
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171, 179-80 (1987)), cert. denied, 113 S. Ct. 1005 (1993). Here,
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17
though no one piece of evidence laid bare the defendants' intent,
the aggregate evidence, taken most hospitably to the prosecution
(as the viewpoint principle demands), was equal to the task.
The lower court's treatment of the evidence anent
transportation rebates illustrates another (related) shortcoming
in the court's inchmeal approach to evidentiary sufficiency: the
court not only took each piece of evidence in isolation, but
weighed the several possible inferences associated with each
piece, and chose between them. Thus, while the judge
acknowledged that the jury could rationally infer criminal intent
in connection with Shirley Olbres' handling of the transportation
rebates,8 he posited that Mrs. Olbres, as an "unschooled lay
person," might well have misconstrued the rebates as something
other than income. D. Ct. Op. at 34. By umpiring the duel
between two competing inferences and declaring the winner on the
basis of which inference appeared more robust in his eyes, the
judge invaded the jury's province.
On a motion for judgment of acquittal unlike, say, on
a motion for a new trial9 it is for the jury, not the court,
to choose between conflicting inferences. In Jackson, the
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Supreme Court stated that a court "faced with a record of
historical facts that supports conflicting inferences must
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8The district court conceded that the evidence could sustain
an inference that Shirley Olbres knew the rebate checks were
taxable income, but attempted to hide them, thereby taking
advantage of Mayflower's failure to report the payments to the
IRS on the required form. See D. Ct. Op. at 34.
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9The defendants did not move for a new trial in this case.
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presume even if it does not affirmatively appear in the record
that the trier of fact resolved any such conflicts in favor of
the prosecution, and must defer to that resolution." 443 U.S. at
326. Under this directive, the judge's failure to defer to the
permissible inference of willfulness arising out of, inter alia,
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the defendants' failure to report the rebate checks constitutes
error.
There is still another aspect of the district court's
methodology that bears correction. In finding the proof
insufficient to convict, the court cited, and relied upon, a
statement to the effect "that if a hypothesis of innocence is
sufficiently reasonable and sufficiently strong, then a
reasonable trier of fact must necessarily entertain a reasonable
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doubt." United States v. Bell, 678 F.2d 547, 550 (5th Cir. 1982)
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(en banc) (Anderson, J., concurring) (internal citation and
quotation marks omitted), aff'd on other grounds, 462 U.S. 356
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(1983). Even apart from a citation error,10 this stripped-down
formulation, without more, comprises a misleading statement of
the law. Its principal vice is that it is incomplete. The
quoted text fails to reflect a core element of the viewpoint
principle: the necessity of drawing inferences hospitable to the
government's theory of the case before judging the strength of
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any proffered hypothesis of innocence. We explain briefly.
In analyzing a motion for judgment of acquittal, a
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10The district court incorrectly attributed this language to
the Bell majority. See D. Ct. Op. at 20.
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19
court is obliged to take, and then to scrutinize, a snapshot of
the case but, as we have made clear on other occasions,11 the
snapshot only can be taken after focusing the lens of inquiry at
an angle favorable to the prosecution. The district court
neglected this focus. It took the snapshot head-on (as a judge
would do if presiding over a bench trial). Consequently, the
court acknowledged that inferences of willfulness could plausibly
be drawn from much of the evidence, but, instead of crediting
those inferences and then confronting the question of evidentiary
sufficiency, the court simply placed the inculpatory inferences
on an equal footing with various exculpatory inferences and
proceeded to weigh this mixed bag. In other words, the court
neither deferred to the jury's presumed choice of alternative
inferences, see Jackson, 443 U.S. at 326, nor evaluated the
___ _______
potency of the defendants' hypothesis of innocence in light of
____________
those presumed choices. This improper focus emptied the
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11See, e.g., United States v. Flores-Rivera, __ F.3d ___
___ ____ ______________ _____________
(1st Cir. 1995) [No. 93-1558]:
[I]f the evidence viewed in the light most
favorable to the verdict gives equal or
nearly equal circumstantial support to a
theory of guilt and a theory of innocence of
the crime charged, this court must reverse
the conviction. This is so because . . .
where an equal or nearly equal theory of
guilt and a theory of evidence is supported
by the evidence viewed in the light most
favorable to the prosecution, a reasonable
jury must necessarily entertain a reasonable
doubt.
Id. at ___ [slip op. at 5] (quoting United States v. Sanchez, 961
___ _____________ _______
F.2d 1169, 1173 (5th Cir.), cert. denied, 113 S. Ct. 330 (1992)).
_____ ______
20
viewpoint principle of its essential meaning (causing the court
to usurp the jury's function) and produced a snapshot that
distorted, rather than accurately depicted, the Rule 29 record.
III. CONCLUSION
III. CONCLUSION
We need go no further. It is trite, but true, that a
court "ought not disturb, on the ground of insufficient evidence,
a jury verdict that is supported by a plausible rendition of the
record." Ortiz, 966 F.2d at 711. While there may well be cases
_____
in which the government's proof founders in the "realm between
preponderance and `beyond reasonable doubt,'" D. Ct. Op. at 22,
see also Hon. Jon O. Newman, Beyond "Reasonable Doubt", 68 N.Y.U.
___ ____ _________________________
L. Rev. 979, 986-88 (1993) (criticizing the perceived
toothlessness of appellate application of the reasonable doubt
standard in review of evidentiary insufficiency claims), this
case is not of that genre. To the contrary, this case evokes our
frequently reiterated rule that:
[I]n a criminal case, "the evidence need not
preclude every reasonable hypothesis
inconsistent with guilt" in order to sustain
a conviction. It is enough that . . . a
rational jury could look objectively at the
proof and supportably conclude beyond
reasonable doubt that the defendant's guilt
had been established.
United States v. Ingraham, 832 F.2d 229, 239-40 (1st Cir. 1987)
_____________ ________
(internal citation omitted), cert. denied, 486 U.S. 1009 (1988).
_____ ______
Because our perscrutation of the record convinces us that, in
mulling the issue of intent, the district court both misapplied
the appropriate legal standard and undervalued the force of the
government's overall proof, the judgment below must be
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Reversed.
Reversed.
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22