United States v. Tonya Womack

481 F. App'x 925
Court of Appeals for the Fifth Circuit·Decided July 19, 2012·No. 11-20210·Unpublished·Cited by 2 cases

Opinions

PER CURIAM: *

A husband and wife were indicted for offenses arising out of their business of preparing federal income tax returns. The indictment alleged one count of conspiring to defraud the United States by obstructing the collection of income taxes and by assisting in the preparation of false [928] income tax returns, see 18 U.S.C. § 371, and 25 counts of aiding and assisting in the preparation of false income tax returns. See 26 U.S.C. § 7206(2). Thirteen of the counts charged the husband, while the remaining twelve charged the wife. A jury convicted them on every count. We AFFIRM.

FACTS

Donald and Tonya Womack were the owners and operators of Front Door Tax Services, a small company that prepared personal income tax returns in Houston, Texas. Originally, Donald was the only person who prepared returns for the business. Donald misrepresented that he was an accountant who had worked previously for the IRS. As business grew, he sought assistance in preparing the returns from his wife, Tonya. At first, Tonya only provided support services to Donald. Her responsibilities progressed until she registered with the IRS to obtain an electronic filing identification number so that she could file client returns electronically. Donald used this identification number as well. At some point, Tonya began to prepare tax returns for customers. To learn the proper methods for preparing a return, she attended a tax preparation course provided by a national tax-preparation business.

The Womacks came to the attention of the Internal Revenue Service due to unusual deductions claimed on returns they prepared. A federal grand jury returned a 26-count indictment against the couple, alleging a conspiracy and aiding and assisting in the preparation of false tax returns. A jury trial was held in the United States District Court for the Southern District of Texas.

The government’s case concerned 26 of the thousands of returns the Womacks prepared. One government witness was Robert Walenta. Front Door prepared his return, which prompted an IRS inquiry because it claimed a substantial deduction for vehicle mileage. The IRS told Walenta he needed to submit documentation to support the deduction. When Walenta told Donald, Donald offered to provide fraudulent mileage logs that could be given to the IRS.

Other taxpayers also testified. They explained how their returns claimed deductions that were not permitted, such as charitable deductions although the taxpayer never donated to charity or mortgage-interest deductions although the taxpayer did not own a home. The taxpayers all testified that they never provided the Womacks with any information that would justify the inclusion of those deductions on their tax returns. Tonya testified that any errors contained in the tax returns she prepared were honest mistakes due to her unfamiliarity with the specific requirements of the tax code.

The government also called an undercover IRS agent. As part of the investigation, the agent went to Front Door to have a tax return prepared. He brought along the necessary paperwork. The agent calculated he legitimately would owe about $800 in taxes. He testified that Front Door offered him a choice of three refunds: $3,200, $3,500, or $4,200.

At the close of the government’s case, both Donald and Tonya moved for acquittal. This motion was denied. Tonya, but not Donald, put on evidence. Her theory was that each of her errors were accidental mistakes.

The jury found Donald and Tonya guilty on all counts. The district court sentenced Donald to 60 months imprisonment and three years of supervised release. Tonya was sentenced to 33 months of imprisonment and three years of supervised release. Both were ordered to pay restitu[929] tion of $161,855, for which they are jointly and severally liable. They appeal.

DISCUSSION

There are five issues: (1) Were jurors improperly allowed to consider, in deciding Tonya’s guilt, the fact that Donald prepared false mileage logs; (2) did the district court err in denying funding to the defense for an expert witness; (3) was there reversible error in the government’s closing statement; (4) was there sufficient evidence to convict Donald; and (5) did the district court err by denying Donald’s motion for a fifth continuance?

I. District Court’s Jury Instruction Regarding Fraudulent Mileage Logs

Tonya argues the district court erred by informing the jurors that they could consider, when determining her criminal intent, that Donald attempted to give false mileage logs to a customer. She did not object at trial, which leads us to review the instruction for plain error only. See United States v. Smith, 354 F.3d 390, 396 n. 7 (5th Cir.2003). To establish plain error, Tonya must demonstrate the district court committed (1) an error, (2) that was clear or obvious, and (3) that affected her substantial rights. United States v. Burns, 526 F.3d 852, 858 (5th Cir.2008). In the context of jury instructions, “[pjlain error occurs only when the instruction, considered as a whole, was so clearly erroneous as to result in the likelihood of a grave miscarriage of justice.” United States v. Garcia, 567 F.3d 721, 728 (5th Cir.2009) (quotation marks and citation omitted).

The instruction Tonya challenges related to the use of the evidence under Rule 404(b). Under that rule, evidence of other acts may be introduced to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2). Generally, these other acts are only relevant to the actor. For this reason, the other acts of one person usually cannot be used to show the intent of another. See United States v. Cihak, 137 F.3d 252, 258 & n. 3 (5th Cir.1998). There is an exception when the individuals are part of a conspiracy, but the alleged conspiracy here ended before Donald offered the false logs. See United States v. Mann, 161 F.3d 840, 859-60 (5th Cir.1998).

Prior to the testimony, the district court provided the following instruction:

The evidence that you are hearing, ladies and gentlemen, is evidence of— that pertains to acts of the defendants that may be similar to those charged in the indictment but which were committed on other occasions.

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United States v. Tonya Womack, 481 F. App'x 925 (5th Cir. 2012).

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