United States v. Olry Maurival

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 22, 2021
• Docket: 19-15163
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-15163 Non-Argument Calendar ________________________

D.C. Docket No. 9:19-cr-80054-JIC-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OLRY MAURIVAL,

Defendant-Appellant.

________________________

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

(March 22, 2021)

Before WILLIAM PRYOR, Chief Judge, NEWSOM and ANDERSON, Circuit Judges.

PER CURIAM: USCA11 Case: 19-15163 Date Filed: 03/22/2021 Page: 2 of 6

Olry Maurival appeals his convictions and sentence of 70 months of

imprisonment for one count of conspiring to defraud the United States, 18 U.S.C.

§ 371, eight counts of aiding and assisting in the preparation of false tax returns, 26

U.S.C. § 7206(2), and two counts of filing a false tax return, id. § 7206(1).

Maurival challenges the sufficiency of the evidence supporting his convictions and

the admission of an out-of-court statement by Jaezy Diaz, a tax preparer. Maurival

also challenges the enhancement of his sentence for being an organizer or leader of

the conspiracy. We affirm.

Ample evidence supports Maurival’s convictions for conspiring to defraud

the United States and for aiding and assisting in preparing false tax returns.

Testimony from agents of the Internal Revenue Service, from clients, and from

software suppliers and copies of Maurival’s business records proved that he

profited from participating in a scheme to deny the government tax revenues and

that he assisted his coconspirators in obtaining false tax refunds for thousands of

clients. See United States v. Nerey, 877 F.3d 956, 968 (11th Cir. 2017); United

States v. Hough, 803 F.3d 1181, 1188 (11th Cir. 2015). Maurival shared the

electronic filing identification number for the Vista Parkway office of his tax

preparation company, Glory Marketing and Financial Services, Inc., with

coconspirators who used the number to file false tax returns, allowed them to put

his company name on business cards, and paid some coconspirators from his bank

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account. See United States v. Baldwin, 774 F.3d 711, 721 (11th Cir. 2014); United

States v. Moran, 778 F.3d 942, 960–61 (11th Cir. 2015). Maurival prepared and

aided coconspirators in preparing tax returns that claimed the earned income credit

and itemized deductions and credits at a rate that exceeded the national average.

Federal agents discovered in the Vista Parkway office a book titled “How to

Pay Zero Taxes,” in which topics and related page numbers had been highlighted

that corresponded to the deductions and credits the conspirators falsely claimed.

They also found a notebook containing handwritten notes about a “Presentation,”

“Olry,” and using “EIC.” Agents also seized from Maurival’s storage locker

materials issued by the Service that addressed the earned income credit and tax

preparer fraud involving returns that claimed inflated expenses, false deductions,

and unallowable credits and that manipulated income amounts to fraudulently

qualify for the earned income credit.

Consistent with those materials, the tax returns prepared by the conspirators

falsely claimed deductions and credits for charitable donations, automobile

mileage, unreimbursed employee business expenses, fuel purchases, and

educational expenses and falsely reported household help income. The false entries

were material because they impeded the Service from verifying the clients’

incomes and calculating their tax liability. See United States v. Taylor, 574 F.2d

232, 235 (5th Cir. 1978). And the falsifications were intentional because, as the

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representative for Maurival’s tax software company explained, a tax preparer had

to enter the deductions and credits manually. On this evidence a juror reasonably

could find that Maurival conspired to and aided his coconspirators to file false tax

returns.

Substantial evidence also proved that Maurival prepared and filed individual

federal income tax returns for taxable years 2012 and 2013 that knowingly

underreported the gross receipts from the operation of his business. See 26 U.S.C.

§ 7206(1); Hough, 803 F.3d at 1188. A third party that collected tax preparation

fees for Glory Marketing deposited into Maurival’s bank account at Wells Fargo

fees of $475,000 in 2012 and of $461,000 in 2013. But Maurival filed no federal

corporate return for Glory Marketing for taxable year 2013, reported gross receipts

of $28,496 and a net profit of $518 for the company for taxable year 2012, and

reported no gross receipts from the company on his individual tax returns for those

two years. Maurival’s individual federal tax returns were false because they

omitted a substantial amount of gross receipts from his business, see id., and those

omissions were material because they prevented the Service from verifying the

amount of taxes that Maurival owed as a sole proprietor, see Taylor, 574 F.2d at

235. And Maurival knew the correct amounts for gross receipts. His bank records

established that he was the sole signatory on and that he had paid Diaz and two

other tax preparers more than $82,000 for their work on tax returns.

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Maurival argues that the district court erred by admitting a hearsay statement

that identified him as Diaz’s boss under the exception for statements made by a

coconspirator, see Fed. R. Evid. 801(d)(2)(E), but we need not address that

argument because we can affirm on the alternative ground stated by the district

court. Before we will reverse a “judgment that is based on multiple, independent

grounds, an appellant must convince us that every stated ground for the judgment

against him is incorrect.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680

(11th Cir. 2014). If the “appellant fails to challenge properly on appeal one of the

grounds on which the district court based its judgment, he is deemed to have

abandoned any challenge of that ground . . . .” Id. The district court also admitted

the hearsay statement under the exception for statements of a party opponent. See

Fed. R. Evid. 801(d)(2)(D). Because Maurival does not contest that alternative

ruling, “it follows that the [admission of the hearsay statement] is due to be

affirmed.” Sapuppo, 739 F.3d at 680.

The district court did not clearly err in finding that Maurival was an

organizer or leader of the conspiracy to defraud the United States. A defendant is

subject to a four-level increase in his base offense level if he organized or led an

offense that involved five or more participants or that was otherwise extensive.

United States Sentencing Guidelines Manual § 3B1.1(a) (Nov. 2018). Maurival

was the sole owner and director of Glory Marketing, he controlled and distributed

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the proceeds of the conspiracy, and he provided other tax preparers guidance on

how to claim false deductions and credits and the means to file their false tax

returns. See id. cmt. n.4. And Maurival does not dispute that the conspiracy

involved at least five participants, which includes his two codefendants who

pleaded guilty and the three tax preparers he paid from the proceeds deposited into

his bank account. The evidence supports the finding that Maurival orchestrated the

activities of the conspiracy.

We AFFIRM Maurival’s convictions and sentence.