F I L E D United States Court of Appeals Tenth Circuit PUBLISH January 11, 2007 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, v. No. 05-1428 CARL W ILLIA M PURSLEY, JR.,
Defendant-Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT FOR T HE DISTRICT OF COLORADO (D.C. NO . 03-CR-00415-REB)
M arci A. Gilligan, Richilano & Gilligan, P.C., Denver, Colorado, (Patrick L. Ridley and Robert T. Fishman, Ridley M cGreevy W eisz P.C., Denver, Colorado, with her on the brief) for Defendant-Appellant.
James C. M urphy, Assistant United States Attorney (W illiam J. Leone, United States A ttorney, and M atthew T. Kirsch, Assistant Untied States A ttorney, with him on the brief), Office of the United States Attorney, Denver, Colorado, for Plaintiff-Appellee.
Before M U RPH Y, A ND ER SO N, and TYM KOVICH, Circuit Judges.
T YM K O VIC H, Circuit Judge. I. Introduction
W hile jailed in a Colorado state prison, Carl W illiam Pursley was indicted
by the United States for tax fraud. The government alleged that Pursley filed
fraudulent tax returns on behalf of himself and other prisoners and received
refund payments as a result. He was subsequently convicted by a federal jury on
one count of conspiracy to defraud the United States, in violation of 18 U.S.C.
§ 371, and two counts of aiding and abetting the preparation of false tax returns,
in violation of 26 U.S.C. § 7206(2).
On appeal, Pursley raises four claims challenging his conviction and
sentence. The district court erred by (1) failing to dismiss the case due to
violations of the Interstate A greement on Detainers A ct; (2) refusing to sever his
trial from that of a co-defendant; (3) allowing the jury verdict to stand despite
insufficient evidence to support the conspiracy conviction and, relatedly,
contributing to jury confusion by improperly instructing them on the conspiracy
count; and (4) violating the Double Jeopardy Clause while imposing consecutive
sentences for different crimes that w ere supported by the same evidence.
Taking jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291,
we AFFIRM .
II. Factual Background
Carl Pursley and his co-defendant, W illiam W ardell, were indicted by the
United States on August 20, 2003, on various counts of tax fraud. Pursley was
specifically charged with conspiring to defraud the Internal Revenue Service by
-2- assisting in the preparation of false tax returns for the purpose of fraudulently
obtaining refunds based on the Earned Income Credit. At the time the federal
indictment was filed, Pursley and W ardell were prisoners of Colorado, serving
sentences on prior convictions.
To obtain his availability for trial, the United States lodged a detainer
against Pursley on August 21, 2003, and obtained custody by filing a writ of
habeas corpus ad prosequendum on October 9, 2003. Pursley was transferred to
another facility under federal control where he remained for twenty-two months
while he awaited trial on the tax fraud charges. During that period, Colorado
filed a new indictment against Pursley in an unrelated criminal case.
Accordingly, Colorado sought his presence in state court for preliminary
proceedings. On at least two occasions, the state filed w rits of habeas corpus ad
prosequendum to obtain temporary custody to escort Pursley to court. Each time,
he was returned to federal prison the same day. At no time was Pursley returned
to a Colorado corrections facility to resume serving his initial state prison
sentence.
On April 25, 2005, Pursley moved to dismiss the federal indictment with
prejudice on the ground that the United States had violated the “anti-shuttling”
provision of the Interstate Agreement on Detainers Act in releasing him to the
temporary custody of Colorado. The district court denied his motion, and the
case proceeded to trial. Before it began, Pursley moved to have his trial severed
-3- from that of his co-defendant, alleging that they would present antagonistic
defenses. The district court denied this motion as w ell.
On M ay 25, 2005, a federal jury convicted Pursley on one count of
conspiracy to defraud the United States and two counts of aiding and abetting the
preparation of false tax returns. He was sentenced to 96 months
incarceration— 60 months imprisonment on the conspiracy count to be served
consecutively with 36-month concurrent sentences for each count of aiding and
abetting. He appeals both his conviction and sentence.
III. Discussion
Pursley raises four issues on appeal. W e address each in turn.
A. Interstate Agreement on D etainers
Pursley argues the United States violated the Interstate Agreement on
Detainers (IAD or Agreement), 18 U.S.C. App. § 2 [hereinafter IAD]; Colo. Rev.
Stat. § 24-60-501 (2004), by transferring him from a state to federal prison and
then allowing state officials to escort him to state proceedings on new state
charges while he was in federal custody. Accordingly, he contends that the
district court erred by failing to dismiss the federal indictment and that we should
reverse his conviction.
The IAD creates among its contracting parties uniform procedures for
lodging and executing a detainer, “a legal order that requires a State in which an
individual is currently imprisoned to hold that individual . . . so that he may be
tried by a different State for a different crime.” Alabama v. Bozeman, 533 U.S.
-4- 146, 148 (2001). For purposes of the IAD, the state in which a prisoner is
initially serving a sentence is classified as the “sending state” (here, Colorado),
and the state that subsequently indicts the prisoner and obtains custody is the
“receiving state” (here, the United States). 1 IAD, Art. II(b)–(c). The Agreement
“provides for expeditious delivery of the prisoner to the receiving State for trial
prior to the termination of his sentence in the sending State” and “seeks to
minimize the consequent interruption of the prisoner’s ongoing prison term.”
Bozeman, 533 U.S. at 148. The Agreement is based on the premise that prison
treatment and rehabilitation programs are negatively impacted when a prisoner is
indicted and transferred to a new jurisdiction and then returned to the original
place of imprisonment before trial is had on the new charges. See IA D, Art. I.
The Agreement authorizes transfer of a prisoner from a sending state to a
receiving state as follow s:
The appropriate officer of the jurisdiction in which an untried indictment . . . is pending [i.e., the receiving state] shall be entitled to have a prisoner against whom he has lodged a detainer and w ho is serving a term of imprisonment in any party State made available in accordance with article V (a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the State in which the prisoner is incarcerated [i.e, the sending state].
Id. at Art. IV(a). The A greement protects the prisoner from excessive transfers
through the so-called “anti-shuttling” provision, which states,
1 The United States and Colorado are party “States” to the Agreement. IA D § 2; Colo. Rev. Stat. § 24-60-501 (2006),
-5- If trial is not had on any indictm ent . . . contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment to article V(e) hereof, such indictment . . . shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
Id. at Art. IV(e). Accordingly, by its express terms, the IAD is violated under
two conditions— when a prisoner, who is serving a sentence in the sending state
and indicted by the receiving state, is (1) transferred to the receiving state based
on its lodging a detainer against him and requesting custody, id. at Art. IV(a), and
then (2) returned to the “original place of imprisonment” before standing trial on
the untried indictment, id. at Art IV(e).
In this case, the first condition of an IAD violation was clearly met. While
serving his sentence in Colorado state prison, Pursley was indicted by the United
States, which lodged a detainer against him and, by means of a writ of habeas
corpus ad prosequendum, obtained custody and transferred him to a federal
facility. See U nited States v. M auro, 436 U.S. 340, 348 (1978) (holding the
combination of lodging a detainer and obtaining custody by means of a writ of
habeas corpus ad prosequendum triggers application of the IA D). 2
2 The government contends that because Colorado only filed a writ of habeas corpus ad prosequendum to obtain custody over Pursley from the federal government, the IAD is not implicated. W hile the Supreme Court has held that a writ of habeas corpus ad prosequendum by itself does not trigger the IA D, see M auro, 436 U .S. at 349, the IAD was already triggered by the federal government’s (i.e., the receiving state’s) actions in this case and the anti-shuttling provision is thus applicable. The government’s argument would only have relevance if the federal government was the sending state.
-6- The principal issue here is whether the second condition of an IAD
violation was met. The prosecution argues Pursley was never “returned to the
original place of imprisonment” within the meaning of the IAD because he was
never sent back to a Colorado prison. Pursley objects to this literal reading of the
text and argues that the anti-shuttling provision be interpreted to include any type
of custody over the prisoner by the sending state.
Pursley argues that the Supreme Court in Alabama v. Bozeman interpreted
the IAD to require dismissal of pending charges by the receiving state when a
prisoner is placed in the custody of the sending state, even in circumstances
where a prisoner’s custody is of short duration.
In that case, the prisoner, Bozeman, was serving time in a federal prison
when Alabama indicted him on an unrelated crime. Bozeman, 533 U.S. at 151.
Alabama lodged a detainer against him and subsequently obtained custody over
him. The state then transported him approximately 80 miles to a county jail,
where he spent the night before appearing for his arraignment the next morning.
He was returned to federal prison that evening and resumed serving his original
At the outset, the Supreme Court acknowledged, “Alabama does not deny a
violation of A rticle IV(e) as literally interpreted, for it concedes that its officials
‘returned’ Bozeman to his ‘original place of imprisonment,’ before Bozeman’s
county court ‘trial’ was ‘had.’” Id. at 152 (emphasis in original). The Court
rejected Alabama’s argument that spending one night in state prison constituted
-7- only a “de minimus” or “technical” violation. Id. at 153. Rather, the C ourt
reasoned, “every prisoner arrival in the receiving State, whether followed by a
very brief stay or a very long stay in the receiving State, triggers IV(e)’s ‘no
return’ requirement.” Id. at 154 (emphasis in original). In other words, Article
IV(e)’s anti-shuttling provision applies whenever a prisoner is provided to a
receiving state pursuant to a detainer. The length of the prisoner’s custody by the
receiving state has no bearing on the operation of the “no return” requirement.
Accordingly, the Court concluded, the Alabama charges should have been
dismissed.
Pursley’s attempt to compare his case to Bozeman is unpersuasive because
he was not “returned to [his] original place of imprisonment” under A rticle IV (e).
In Bozeman, the prisoner w as serving time in a federal penitentiary under a
federal sentence. After his short foray into state court and prison pursuant to a
detainer, Bozeman was returned to the same federal prison to resume serving his
original federal sentence. The Supreme Court has held that this is a clear
violation of Article IV(e). 3 In this case, Pursley was never returned to Colorado
to resume serving his original state sentence. Instead, his only trip back into
Colorado state jurisdiction was to answer a third set of state charges unrelated to
3 Pursley’s reliance on United States v. Kelley, 300 F. Supp. 2d 224 (D . M ass. 2003), is equally unavailing considering the district court in that case also found the receiving state shuttled the defendant back to the sending state to resume serving his original sentence prior to trial being had. Id. at 233. This is not the case here.
-8- his original sentence or federal charges. He never was transferred to the Colorado
Department of Corrections to begin anew his service of his original state
sentence. Furthermore, the one-day excursion to the Colorado state courthouse
for arraignment was only by chance in Colorado, the state of his original
imprisonment. If any other state, such as W yoming, had asked the federal
government to provide Pursley for a one-day arraignment under similar
circumstances, we do not see how this would have violated the anti-shuttling
provision.
W e note that our interpretation is supported by the plain language of the
anti-shuttling provision and the IAD’s purpose. First, Article IV(e) applies when
the prisoner is “returned . . . to the original place of imprisonment pursuant to
article V(e).” IAD (emphasis added). Article V(e) provides that, “[a]t the earliest
practical time consonant with the purposes of this agreement, the prisoner shall be
returned to the sending State.” Id. Read together, these words suggest that the
prisoner must be sent back to recommence serving his original sentence to trigger
the anti-shuttling provision. Under Article V(e), a prisoner should be returned to
the sending state to resume his original sentence following the disposition of the
receiving state’s trial. Article V(e), on its face, does not contemplate other
reasons to send a prisoner back to the sending state.
Second, the purpose of the IAD’s anti-shuttling provision is to minimize
the uncertainties attendant with outstanding charges which interfere with a
prisoner’s rehabilitation and treatment programs and to encourage the expeditious
-9- and orderly disposition of such charges. See IAD, Art. I. As we have said,
Congress did not want prisoners to “have programs of treatment and rehabilitation
obstructed by numerous absences in connection with successive proceedings
related to pending charges in another jurisdiction.” United States v. Wilson, 719
F.2d 1491, 1494 (10th Cir. 1983). The mere temporary transfer of a prisoner to a
different jurisdiction to answer pending charges while in the custody of a
receiving state does not implicate these concerns so long as it does not
impermissibly lengthen a prisoner’s stay in the receiving state. 4 W here a transfer
is of short duration and does not interrupt trial proceedings in the receiving state
in violation of the IAD’s other provisions, as is the case here, a prisoner spends
no additional time away from the sending state and, thus, there can be no impact
on a prisoner’s rehabilitative programs and treatment in the sending state. On the
other hand, the expeditious resolution of untried charges in a different
jurisdiction, such as the third set of Colorado charges Pursley faced, is fully
consistent w ith the purposes of the IA D.
For these reasons, we conclude that the IA D’s anti-shuttling provision is
not triggered by the circumstances presented here. 5
4 A receiving state must comm ence trial on untried indictments within one hundred twenty days from the arrival of the prisoner. IAD, Art. IV(c). 5 The government alternatively argues that Pursley waived his IAD argument by failing to raise it before the pre-trial motions deadline had passed. Pursley responds by contending that this issue is jurisdictional and non-w aivable. W e had not addressed whether violations of the IAD constitute jurisdictional claims on direct appeal. Nevertheless, we have stated, “Absent special (continued...)
-10- B. Trial Severance
Pursley next argues the district court comm itted reversible error by failing
to grant his motion to sever his trial from that of his co-defendant, W endel
W ardell. He contends severance was necessary because the two defendants had
planned to present antagonistic defenses and the joint trial precluded him from
fully pursuing his theory of defense.
W hen considering a motion for severance, a trial court engages in a three
step inquiry. First, it must determine w hether the defenses presented are “so
antagonistic that they are mutually exclusive.” United States v. Peveto, 881 F.2d
844, 857 (10th Cir. 1989). Second, because “[m]utually antagonistic defenses are
not prejudicial per se,” a defendant must further show “a serious risk that a joint
trial would compromise a specific trial right . . . or prevent the jury from making
a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S.
534, 539 (1993). Third, if the first two factors are met, the trial court exercises
its discretion and “weigh[s] the prejudice to a particular defendant caused by
joinder against the obviously important considerations of economy and expedition
in judicial administration.” Peveto, 881 F.2d at 857. W here the trial court
5 (...continued) circumstances, violations of the [IAD] are not grounds for collateral attack on a federal conviction and sentence” because “rights created by the [IAD] are statutory, not fundamental, constitutional, or jurisdictional in nature.” Greathouse v. United States, 655 F.2d 1032, 1034 (10th Cir. 1981). Because we have concluded the government’s conduct did not implicate the IAD in this case, we need not answer w hether violations of its provisions may be waived.
-11- ultimately denies severance, its decision will be reversed only where the
defendant has demonstrated an abuse of discretion. United States v. Hayes, 861
F.2d 1225, 1231 (10th Cir. 1988).
According to Pursley, his theory of defense at trial was that he never
prepared or assisted in the preparation of the relevant tax returns. He hoped to
persuade the jury that (1) although funds were deposited in his account and spent,
(2) he was not aware of how the money arrived, (3) he did not have any
knowledge of tax returns filed in his name, nor (4) was he ever employed by
Cimmaron Farms, the company to which his income was attributed on the returns.
W ardell’s defense, on the other hand, was that the tax forms were legitimate— that
Pursley had participated in their preparation, had indeed been employed by
Cimmaron Farms, and was properly entitled to receipt of Earned Income Credit
funds. Thus, while Pursley merely argued no crime was comm itted by him,
W ardell maintained no crime was comm itted at all.
Applying these factors, w e conclude the district court did not abuse its
discretion in declining to sever the trial. Even though Pursley could establish that
the pair’s defenses w ere mutually exclusive, we find no actual prejudice to
Pursley under the second factor.
W e are satisfied that Pursley’s and W ardell’s defenses w ere sufficiently
exclusive and antagonistic under the first factor. 6 Defenses are mutually
6 The district court found that Pursley’s and W ardell’s defenses were not mutually exclusive. Dist. Order, vol. I, doc. 643, at 2–3. In doing so, we believe (continued...)
-12- antagonistic if “the conflict between codefendants’ defenses [is] such that the
jury, in order to believe the core of one defense, must necessarily disbelieve the
core of the other.” United States v. Linn, 31 F.3d 987, 992 (10th Cir. 1994). In
other words, defendants must show that “the acceptance of one party’s defense
would tend to preclude the acquittal of the other, or that the guilt of one
defendant tends to establish the innocence of the other.” Peveto, 881 F.2d at 857
(holding mutually exclusive defenses where one defendant claimed to be
preparing to be an informant and invited the other defendant, a purported drug
dealer, to his house to gather information, while the other defendant claimed to be
innocently at the house and held against his will by the first defendant).
A jury could not simultaneously believe Pursley’s and W ardell’s theories of
defense. Pursley either worked at Cimmaron Farms or he did not. He either
participated in the preparation and filing of tax returns or he did not. If the jury
believed that Pursley had no knowledge of the tax refunds and had no part in
Cimmaron Farms, then it would necessarily have to disbelieve W ardell’s story
that he and Pursley were legitimately entitled to file tax refunds based on their
employment by Cimmaron Farms. Pursley’s legitimate participation in the
Cimmaron Farms enterprise was a core element of W ardell’s defense theory.
W ithout it, W ardell’s defense would simply collapse, casting serious doubts on
6 (...continued) that the district court conflated the first “mutually exclusive” factor and the second “prejudice” factor. W e find that the district court’s analysis is better placed under considerations of prejudice, rather than on antagonism.
-13- W ardell’s claim of innocence. This is simply not a case where “the jury could
have believed all of Defendants’ theories and acquitted all of them.” See United
States v. Linn, 31 F.3d 987, 992 (10th Cir. 1994) (finding no mutual antagonism).
Accordingly, we find these defenses are sufficiently antagonistic under the first
factor.
Nevertheless, Pursley has failed to demonstrate prejudice under the second
factor. To establish prejudice, a defendant must point to a “specific trial right”
that was compromised or show the jury was “prevent[ed] . . . from making a
reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539; see also
United States v. M cClure, 734 F.2d 484, 488–89 (10th Cir. 1984). Pursley argues
prejudice must be presumed because “[w ]hen mutually exclusive defenses are
presented there is a chance that the jury will infer from the conflict the guilt of
both parties.” Peveto, 881 F.2d at 857. Pursley contends that, on this basis, his
defense was less likely to be successful in a joint trial than a severed trial and,
because of this, he opted not to present certain evidence at trial.
W e are not persuaded that this alone will constitute prejudice for purposes
of trial severance. “[I]t is w ell settled that defendants are not entitled to
severance merely because they may have a better chance of acquittal in separate
trials.” Zafiro, 506 U.S. at 540 (emphasis added); see also M cClure, 734 F.2d at
488 (“W e have . . . held that severance is not required simply because separate
trials might have offered a better chance for acquittal to one or more of the
accused.”). Despite their differing theories of defense, nothing prevented Pursley
-14- from presenting evidence to support his theory even if it was inconsistent with
W ardell’s defense.
Second, while Pursley’s theory may establish prejudice to W ardell, it did
not necessarily prejudice Pursley’s defense. As the district court noted in denying
the severance motion,
Both Pursley’s and W ardell’s proposed theories of defense tend to exonerate Pursley of wrongdoing. Under Pursley’s theory, he had no knowledge of or involvement in the alleged scheme to defraud the governm ent by filing false tax returns. Under W ardell’s theory, the tax returns filed in Pursley’s name w ere not fraudulent. If the jury believes either theory, it cannot find Pursley guilty of tax fraud.
Dist. Order, vol. I, doc. 643, at 2–3. Pursley’s problem in the case was the
lack of evidence to support his theory of defense, not his misfortune of trial
with W ardell.
W e therefore agree with the district court that Pursley cannot
demonstrate prejudice from the failure to sever the trial.
Pursley also argues this court should not defer to the district court’s
discretion here because it failed to explicitly engage in the third step of our
inquiry— weighing prejudice to the defendant against considerations of judicial
economy. Yet, the district court found no prejudice at all, leaving nothing to
balance in this step. 7
7 Even assuming Pursley could successfully demonstrate prejudice, severance would not be compelled because “the tailoring of the relief to be granted, if any, [is left] to the district court’s sound discretion.” Zafiro, 506 U.S. at 539; see also United States v. Scott, 37 F.3d 1564, 1579–80 (10th Cir. 1994). “The decision to grant severance and order separate trials is within the sound (continued...)
-15- In sum, the district court’s decision is supported by the facts of this case
and, in any event, does not warrant a conclusion that it abused its discretion in
trying Pursley and W ardell together.
C. Sufficiency of Evidence and Jury Instruction on C onspiracy C harge
Pursley next claims that the jury’s verdict on the conspiracy count should
be overturned because (1) the evidence was insufficient to support the verdict,
and (2) the jury instruction on the conspiracy charge misled the jury.
(1) Sufficiency of the Evidence. W here a defendant claims the evidence
was insufficient to convict, we examine the record in the light most favorable to
the government and will only reverse where, based on the direct and
circumstantial evidence presented and all reasonable inferences and credibility
determinations drawn therefrom, no reasonable jury could find the defendant
guilty beyond a reasonable doubt. United States v. Small, 423 F.3d 1164, 1182
(10th Cir. 2005); United States v. Pedraza, 27 F.3d 1515, 1524 (10th Cir. 1994).
To demonstrate conspiracy, the government must prove “(1) agreement
with another person to violate the law; (2) knowledge of the essential objectives
of the conspiracy; (3) knowing and voluntary involvement; and
(4) interdependence among the alleged co-conspirators.” United States v.
7 (...continued) discretion of the trial court and its decision will not ordinarily be reversed in the absence of a strong showing of prejudice.” Hayes, 861 F.2d at 1231 (internal quotations omitted). Particularly “in a conspiracy trial it is preferred that persons charged together be tried together.” United States v. Ray, 370 F.3d 1039, 1045 (10th Cir. 2004). Consequently, “[t]he defendant’s burden to show an abuse of discretion is a difficult one.” Hayes, 861 F.2d at 1231.
-16- Johnson, 12 F.3d 1540, 1545 (10th Cir. 1993). The charges were based on
nineteen tax returns, including three filed in Pursley’s name, two filed in
W ardell’s name, and one filed in the name of Cimmaron Farms, the ostensible
employer of Pursley (at least, according to his tax returns). The remaining
thirteen returns were filed in the names of nine inmates imprisoned at the same
jail as Pursley and W ardell. Pursley contends, although acknowledging the
existence of evidence that he had participated in some of the acts included in the
conspiracy, the government nevertheless did not prove he “participated in the
broad, single conspiracy charged in the indictment.” Aplt. Br. at 8. Instead, he
argues the government established his connection to W ardell but failed to
establish any connection with the remaining inmates. Thus, he concludes he
cannot be convicted for a conspiracy that includes the filing of all nineteen tax
returns.
Pursley’s argument appears to be based on one of two premises, both of
which are false. One possibility is that Pursley is assuming all individuals whose
names were listed on the false tax returns were co-conspirators. Accordingly,
because the evidence at trial tended to show Pursley’s association with W ardell
but not with the nine inmates listed on the remaining tax returns, he could be
arguing the government failed to prove his interdependence with those nine
individuals. Nevertheless, only Pursley and W ardell were charged with
conspiracy. The flaw here is that the government did not allege a broader
-17- conspiracy involving additional co-conspirators. It only charged Pursley and
W ardell with conspiring to file numerous false returns involving other inmates.
Alternatively, Pursley’s argument could be that direct evidence showing a
connection between himself and each of the nine inmates listed on the tax returns
was necessary for a conviction. He could be contending that such a showing is
required for a reasonable jury to believe his involvement in the preparation of the
first six tax returns (for which he concedes evidence exists) extended to the
preparation of the remaining thirteen tax returns. Such an argument is wrong. It
is well established that the government need not prove its case by direct evidence
alone. See, e.g., United States v. Young, 954 F.2d 614, 618 (10th Cir. 1992)
(“Because criminal conspiracies by their nature are generally secret, often
carefully concealed and may even be unarticulated, conspiracy may be found
based solely upon circumstantial evidence.”).
Here, the government presented direct evidence of his participation in the
preparation of some of the false tax returns (e.g., arrival of funds in his bank
account) and circumstantial evidence of his participation in the preparation of the
remaining false tax returns. The fact that some evidence was circumstantial does
not bar a reasonable jury from convicting him as to the conspiracy alleged in the
indictment. Nor would it be necessary to prove he performed overt acts in
furtherance of each aspect of the conspiracy so long as the government
sufficiently proved that he conspired with W ardell in the tax fraud scheme and at
least one of them engaged in one overt act. See United States v. Dago, 441 F.3d
-18- 1238, 1242 n.1 (10th Cir. 2006) (finding that the overt act requirement of 18
U.S.C. § 371 is satisfied by “any act to effect the object of the conspiracy”).
W e, accordingly, hold that a reasonable jury could have found Pursley
guilty of conspiracy beyond a reasonable doubt.
(2) Jury Instructions. Pursley also argues the district court erred in failing
to provide proper jury instructions on conspiracy. He contends the instructions
were confusing because they failed to distinguish between the portion of the
charged conspiracy upon which the government had direct evidence (preparation
of tax returns listing the names and affiliates of Pursley and W ardell) and the
remainder of the conspiracy upon which the government had only circumstantial
evidence (the remaining tax returns listing the names of additional inmates). W e
perceive no incongruence between the charged and proven conspiracy. Likewise,
we find no instruction is necessary to parse whether a particular allegation is
supported by direct or circumstantial evidence.
In sum, the evidence presented at trial was sufficient to support the jury’s
conviction, and the jury was properly instructed by the district court.
D. Double Jeopardy
Finally, Pursley argues that his sentence is unlawful because the district
court violated the Double Jeopardy Clause of the Fifth Amendment by imposing
consecutive sentences on offenses that were proven by identical facts. The
Constitution provides that no person shall “be subject to the same offense to be
tw ice put in jeopardy of life or limb.” U.S. C ONST ., amend. V. Pursley contends
-19- that the same evidence supports his convictions (1) for conspiracy, and (2) for
aiding and abetting the preparation of false tax returns and, therefore, concludes
that “there is no practical or substantive distinction” between the two crimes in
this case. Aplt. Br. at 26–27.
At the outset, we note that this issue was not raised below. Because this
question was not presented to the district court, we apply a plain error standard of
review. United States v. Battle, 289 F.3d 661, 665 (10th Cir. 2002). Plain error
“occurs when there is (1) error, (2) that is plain, which (3) affects substantial
rights, and which (4) seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” United States v. Lopez-Flores, 444 F.3d 1218, 1222
(10th Cir. 2006).
Pursley’s argument fails the first step because the district court comm itted
no error. In reviewing a double jeopardy claim, the case law is clear, “[W ]here
the same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied [for double jeopardy purposes] is whether each
provision requires proof of an additional fact which the other does not.”
Blockburger v. United States, 284 U.S. 299, 304 (1932); United States v. M alone,
222 F.3d 1286, 1293 (10th Cir. 2000). W hen each offense requires proof of a fact
not essential to the other, the charges are not identical and the accused can be
charged, tried and convicted of both offenses even though the charges arise out of
the same acts. Goldsmith v. Cheney, 447 F.2d 624, 627 (10th Cir. 1971).
-20- Consequently, we look to the elements of the two crimes for which Pursley was
convicted to determine whether a double jeopardy violation exists.
Conspiracy and aiding and abetting a crime are different criminal acts.
Goldsm ith, 447 F.2d at 628 (finding no double jeopardy violation after
prosecutions for both offenses). It is “well settled that commission of a
substantive offense and a conspiracy to commit it are separate crimes because the
essence of a conspiracy charge is an agreement to commit a substantive offense.”
United States v. Johnson, 977 F.2d 1360, 1371 (10th Cir. 1992) (internal
quotations omitted). Pursley was charged with conspiracy to commit tax fraud
which requires “a conspiracy, agreement, or understanding to violate the law. . .
by two or more persons[.]” Instruction No. 19, vol. I, doc. 676. Thus, the crime
of conspiracy is completed when an agreement has been made and an overt act to
further the unlawful design has been performed. Goldsm ith, 447 F.2d at 628.
The substantive offense of aiding and abetting, in contrast, requires no agreement
to comm it the unlawful act. “The epitome of an accessory charge is to aid,
counsel, or assist another in the commission of a criminal act; it does not depend
upon an agreement or conspiracy to perform that act.” Id.
Pursley nonetheless contends that a conviction for aiding and abetting in
this case necessarily requires an agreement. That contention is incorrect. The
elements of aiding and abetting require that Pursley “aided in, assisted in,
procured, counseled, or advised” in the filing of tax returns; that the return falsely
stated material information; and that Pursley knew of the falsity and acted
-21- willfully. See Instruction No. 31, vol. I, doc. 676. 8 None of these elements
demand proof that he entered into a knowing agreement with others to comm it the
crime. In this case, the jury was instructed that, “It is not necessary that the
government prove that the falsity or fraud [involving the tax return] was with the
knowledge or consent of the person authorized or required to present such
return.” Id. This is consistent with our case law stating that an agreement is not
an element of the crime of aiding and abetting. See, e.g., Pereira v. United
States, 347 U.S. 1, 11 (1954) (“Aiding, abetting and counseling are not terms
which presuppose the existence of an agreement.”); Goldsm ith, 447 F.2d at 628.
W hile Pursley and W ardell may have acted in concert in comm itting tax fraud, the
8 The entire jury instruction read,
In order to sustain its burden of proof for the crime of aiding and abetting the preparation or presentation of false tax returns against defendant PU RSLEY as charged in Counts 5 and 6 of the indictment, . . . the government must prove each and all of the following five (5) essential elem ents beyond a reasonable doubt: (1) That defendant PU RSLEY aided in, assisted in, procured, counseled, or advised the preparation or presentation of a return as described in the indictment . . . in connection with any matter arising under the internal revenue laws; and (2) That this return falsely stated information as described in the indictment, . . .; and (3) That defendant PURSLEY knew that one or more of the statements in the return was false; and (4) That the false statement was material; and (5) That defendant PURSLEY acted willfully. It is not necessary that the government prove that the falsity or fraud was with the knowledge or consent of the person authorized or required to present such return.
Instruction No. 31, vol. I, doc. 676.
-22- convictions for aiding and abetting do not necessarily require agreement. The
convictions, therefore, do not run afoul of double jeopardy.
In sum, even though Pursley’s multiple convictions arose from the same
criminal course of action, each crime required proof of a fact not required to
convict for the other crime. Accordingly, we find no error in the district court’s
order of consecutive sentences for the different crimes.
IV. Conclusion
For the foregoing reasons, Pursley’s convictions and sentences are
A FFIRME D.
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