United States v. Wade

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 30, 2006
• Docket: 19-4080
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS October 30, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee, No. 05-4160 v. (D.C. No. 2:04-CR -00141-TS) (D. Utah) STANLEY LEO W AD E,

Defendant - Appellant.

OR D ER AND JUDGM ENT *

Before KELLY, BEAM , ** and HA RTZ, Circuit Judges. ***

Defendant-Appellant Stanley L. W ade was convicted of seven charges

relating to tax evasion and bankruptcy fraud, and he was sentenced to 100 months

in prison, 36 months of supervised release, and a fine of $125,000. M r. W ade

appeals his conviction and sentence, alleging that the district court erred in

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. ** The H onorable C. Arlen Beam, Senior Circuit Judge, United States C ourt of Appeals for the Eighth Circuit, sitting by designation. *** After examining the briefs and the appellate record, this three-judge panel has decided unanimously to honor the request of the parties to proceed without oral argument. The cause is therefore ordered submitted without oral argument. several evidentiary rulings, that it improperly instructed the jury, that it permitted

the government to make prejudicial arguments in its closing, and that it did not

give his attorney a sufficient opportunity to argue mitigation at sentencing. Our

jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Background

M r. W ade and his wife, Janet, were charged in a nine-count indictment.

Count 1 alleged that the W ades conspired to defraud the IRS by transferring

ownership of various apartment complexes into sham entities called

“Unincorporated Business Organizations” (“UBOs” or “business trusts”) and not

reporting the income from them. The indictment alleged that the complexes

generated gross rental receipts in excess of $7 million, taxable income of $4

million, and a tax liability of over $1.5 million. The W ades were accused of

conspiring to hide ownership of the complexes not only to conceal income and

evade tax, but also to conceal a source of payment of an outstanding tax liability

from 1982-84 in excess of $1 million. Count 1 also alleged that the W ades

conspired to file for bankruptcy fraudulently, with M r. W ade representing that he

had no real property assets. Counts 2-5 charged the W ades with evasion of

assessment for tax years 1997-99 and evasion of payment for 1982-84 in violation

of 26 U.S.C. § 7201 and 18 U.S.C. § 2. Count 6 alleged that M r. W ade

comm itted bankruptcy fraud in violation of 18 U.S.C. § 157, and count 8 charged

-2- him with making a false statement in a bankruptcy proceeding in violation of 18

U.S.C. § 152. Counts 7 and 9 alleged the same bankruptcy charges against M rs.

W ade. M rs. W ade entered a guilty plea, but M r. W ade elected to stand trial.

After a seven-day jury trial in M arch of 2005, M r. W ade was convicted on all

charges against him.

The parties are familiar w ith the facts, and we need not restate them here.

Instead, we will describe only the facts crucial to our decision on each alleged

error.

Discussion

1. The Attorney-Client Privilege

M r. W ade first argues that the district court erred by permitting the

government to introduce a letter written to him by his attorney, David Black,

addressing the legality of using UBOs to shield the income generated by the

W ades’ apartment complexes from federal taxes. This letter advised that there

w as “no exemption from reporting or taxation in general that applies to a UBO ”

and that the IRS was likely to prosecute if the W ades persisted in failing to report

income from the properties nominally held by their UBOs. I Aplee. Supp. App. at

27.

In the district court, M r. W ade sought to bar the government from

presenting any evidence about the letter, arguing that it was covered by the

-3- attorney-client privilege. At the suppression hearing, the government offered the

testimony of the W ades’ nephew, Adam Passey, and Troy Pow ell, who assisted

M r. W ade in managing the apartment buildings. Both w itnesses testified that M r.

W ade had shown them the letter. See III Aplee. Supp. App. at 457, 476.

The district court found that “M r. and M rs. W ade, in their individual

capacities, were M r. Black’s clients.” Id. at 491. It then addressed the disclosure

of the attorney-client communication, finding that:

M r. W ade disclosed the letter both to M r. Passey and M r. Powell. Neither Passey nor Pow ell were employees or agents of M r. W ade, but rather the UBOs. . . . M r. W ade did not need to disclose the contents of the letter in order to ask M r. Pow ell to resolve the billing dispute. . . . M r. W ade’s disclosure to M r. Passey was motivated more by his frustration with the contents of the letter rather than a need for M r. Passey to know about the letter and its contents. . . . M r. Passey and M r. Pow ell were third parties to the attorney/client relationship between M r. Black and M r. and M rs. W ade.

Id. at 491-92. The court concluded that the letter was privileged but M r. W ade

waived the privilege by disclosing it to M r. Passey and M r. Pow ell. Id. at 492.

W e “review a district court’s determinations regarding waiver of attorney-

client privilege and work-product protection for abuse of discretion. In doing so,

however, we review the district court’s underlying factual findings for clear error,

and its rulings on purely legal questions de novo.” Thiessen v. Gen. Elec. Capital

Corp., 267 F.3d 1095, 1112 (10th Cir. 2001) (citations omitted). 1

1 The government asserts that M r. W ade has waived this argument by failing to include in the record “the letter, the pretrial motions and memoranda, the hearing transcript, or the court’s order.” A plee. Br. at 33. W e ordinarily will

-4- The law governing the waiver of the attorney-client privilege provides that

“[t]he attorney-client privilege is lost if the client discloses the substance of an

otherwise privileged communication to a third party.” United States v. Ryans,

903 F.2d 731, 741 n.13 (10th Cir. 1990). M r. W ade contends that he did not

waive the privilege by disclosing the letter to M r. Powell because “Powell

testified that he played an important role in the Defendant’s business and that

Defendant gave him a copy of the opinion letter as a part of his work.” A plt. Br.

at 3. He further contends that M r. Pow ell was present during discussions with the

attorney and had been instructed to communicate with the attorney about the

UBOs. Aplt. Br. at 11. M r. W ade relies upon Diversified Indus., Inc. v.

M eredith, 572 F.2d 596, 610 (8th Cir. 1977), which addressed the extent to which

a corporate employee’s communications with counsel are protected by the

attorney-client privilege.

W e have noted that the attorney-client privilege facilitates the client’s need

for advice and the attorney’s need for complete information in rendering that

advice. In re Q west Commc’ns, Int’l, Inc., 450 F.3d 1179, 1185 (10th Cir.

2006). Here, the clients were M r. and M rs. W ade, and the opinion letter was

not review a decision, even for plain error, where the “relevant portions of the transcript of the trial proceedings are not part of the record on appeal.” United States v. Davis, 60 F.3d 1479, 1481 (10th Cir. 1995). Here, however, we elect to review it because the materials provided by the government provide a sufficient basis on which to decide the issue.

-5- drafted at M rs. W ade’s urging. M r. Powell and M r. Passey both testified that M r.

W ade talked with them about the U BOs and how he could avoid paying taxes. III

Aplee. Supp. App. at 452, 474. Even were we to accept that M r. Pow ell assisted

M r. W ade in his ventures and that M r. Pow ell’s role included assisting M r. W ade

in obtaining legal advice, M r. W ade does not address the fact that he also

disclosed the letter to his nephew, M r. Passey. See Aplt. Br. at 3 (claiming that

the letter “was reviewed only by W ade, Janet and Powell”) (emphasis added); see

also III Aplee. Supp. App. at 491 (district court’s remarking that parties agreed

letter was disclosed to M r. Pow ell and M r. Passey). This constitutes an

independent ground to uphold the district court’s ruling, and it is well supported

by the record. M r. Passey testified that anytime M r. W ade met with his attorneys,

he w anted a witness. III Aplee. Supp. App. at 454. M r. Passey’s role as a

witness, however, had nothing to do with facilitating attorney-client

comm unications about the UBOs. Id. at 454-55. Thus, M r. W ade’s disclosure of

the letter in the process of venting about the quality of the advice he received

(and its expense) had no connection with any responsibilities M r. Passey had to

the W ades individually.

2. The M arital Privilege

M r. Wade next argues that the district court erred by permitting two

government witnesses, M r. Passey and the W ades’ accountant, M arvin Haney, to

testify about statements they heard M rs. W ade make to her husband. M r. Passey

-6- recounted M rs. W ade’s concerns about whether the W ades could afford to pay

their taxes and whether the UBOs w ould protect them from tax liability. Aplt.

App. at 62-64. The gist of the statements M rs. W ade made in M r. Haney’s

presence was “you are going to get me put in jail over this.” Id. at 51-52.

M r. W ade objected to the use of these statements, arguing that they were

hearsay and privileged marital communications. The district court held a hearing

in which it found that the government had established that the W ades w ere

involved in a conspiracy, making M rs. W ade’s statements non-hearsay under Rule

801(d)(2)(E), Fed. R. Evid. 2 I Aplee. Supp. App. at 76-92. However, the

government represented that it only intended to offer statements made in the

presence of others, w hich would not be covered by the marital privilege. Aplt.

App. at 46. The court granted M r. W ade’s motion to exclude any privileged

spousal communications without addressing the admissibility of statements made

in the presence of third parties. See id. at 85.

M r. W ade now claims that the government did, in fact, offer privileged

2 Under Rule 801(d)(2)(E), a statement is not hearsay if it is “a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” The district court did not explain how statements like “you are going to get me put in jail over this” were made in furtherance of the W ades’ conspiracy, and we do not think that such statements w ere in any way intended to promote conspiratorial objectives or facilitate the conspiracy. See United States v. Caro, 965 F.2d 1548, 1557 (10th Cir. 1992). However, any error in their admission was harmless; the statements were non-hearsay because they were not offered “to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). Instead, they were offered to show M r. W ade had notice of the illegality of his actions, rebutting his good-faith defense.

-7- statements and the district court failed to exclude them. The government

maintains that M r. W ade failed to object and our review should be for plain error.

See United States v. Ambort, 405 F.3d 1109, 1115 (10th Cir. 2005). Given a

proper objection, a trial court’s decision not to apply the marital privilege is an

evidentiary ruling reviewed for an abuse of discretion. See United States v.

Leonard, 439 F.3d 648, 650 (10th Cir. 2006). W hether we review this under the

plain error standard or for an abuse of discretion, the outcome is the same.

“Federal courts recognize two marital privileges: the first is the testimonial

privilege which permits one spouse to decline to testify against the other during

marriage; the second is the marital confidential communications privilege, which

either spouse may assert to prevent the other from testifying to confidential

comm unications made during marriage.” United States v. Jarvison, 409 F.3d

1221, 1231 (10th Cir. 2005). Here, M r. W ade argues that the second privilege

allows him to prevent his wife’s de facto testimony through third party witnesses.

He cites no authority for the idea that the marital privilege can keep a third party

from testifying about statements made by one spouse to another. However, we

need not decide whether M rs. W ade’s statements could be covered by the marital

privilege, because even if they were eligible, the privilege would not apply in this

case.

In Pereira v. United States, the Supreme Court held that “[a]lthough marital

comm unications are presumed to be confidential, that presumption may be

-8- overcome by proof of facts showing that they were not intended to be private.”

347 U.S. 1, 6 (1954). Specifically, “[t]he presence of a third party negatives the

presumption of privacy.” Id. Here, the statements by M rs. W ade were uttered

aloud, often during confrontations between M r. and M rs. W ade, in the presence of

M r. Passey and M r. Haney. W e find no error in the admission of the statements,

plain or otherwise.

3. The Confrontation Clause

M r. W ade also asserts that the district court erred in admitting testimony

about statements made by M rs. W ade and Richard K ennedy, an IRS lawyer,

because they were not subject to cross-examination. In addition to recounting the

aforementioned statements made by M rs. W ade, M r. Passey testified that he told

M r. W ade about a conversation he had with M r. Kennedy. M r. W ade’s counsel

objected on hearsay and relevance grounds, but the court allowed the testimony as

evidence of notice. According to M r. Passey, he told M r. W ade that:

I said, Richard, have you ever seen a UBO be used for tax benefit purposes, ever. He says no, I’ve never seen it, Adam. I’ve prosecuted and dealt with approximately 65 of these. Every single time they are used for income tax savings and that type of thing, they are always blown away. They never prevail. They are never successful.

Aplt. App. at 60.

Because M r. W ade did not raise his Confrontation Clause objections at

trial, our review is for plain error. United States v. Crockett, 435 F.3d 1305, 1311

-9- (10th Cir. 2006); see also United States v. Gomez, 67 F.3d 1515, 1524 (10th Cir.

1995) (“[T]he failure to object to the admissibility of evidence is a waiver absent

plain error.”). Under this standard, we look for (1) an error (2) that is plain and

(3) that affected substantial rights; we will reverse only if the error “affected the

outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725,

732-34 (1993).

In Crawford v. W ashington, the Supreme Court held that the Sixth

Amendment requires a trial court to exclude hearsay that is “testimonial” in

nature when the defendant has not had the opportunity to cross-examine the

declarant. 541 U.S. 36, 68 (2004). The Court did not precisely define testimonial

in Crawford, but it indicated in Davis v. W ashington that a statement is

testimonial if the “the circumstances objectively indicate . . . that the primary

purpose of the interrogation is to establish or prove past events potentially

relevant to later criminal prosecution.” 126 S. Ct. 2266, 2273-74 (2006); see also

United States v. Summers, 414 F.3d 1287, 1302 (10th Cir. 2005) (“[A] statement

is testimonial if a reasonable person in the position of the declarant would

objectively foresee that his statement might be used in the investigation or

prosecution of a crime.”).

Neither M rs. W ade’s nor M r. Kennedy’s statements qualify as “testimonial”

under this definition of the term. M rs. W ade said she was w orried about going to

jail, w orried about paying the taxes, and worried about going into bankruptcy.

- 10 - M r. Kennedy offered observations based on his extensive experience dealing with

UBOs. These statements lacked the “formality [that] is indeed essential to

testimonial utterance,” Davis, 126 S. Ct. at 2278 n.5 (2006), and the

circumstances do not indicate that they were likely to be used in the investigation

or prosecution of a crime. M r. Passey and M r. Haney were not government

agents or even private investigators. They were not adverse to the W ades in any

way. Indeed, M r. Passey testified that his intent in questioning M r. Kennedy was

to obtain statements he could communicate to M r. W ade in order to help him

avoid prosecution. See Aplt. App. at 57 (“I needed to speak to someone in the

IRS because if I could get the information, maybe I could take it to [my] family

member and get him not to do something which could very well–was probably

illegal.”).

In any case, the statements were not testimonial because they were not

offered for their truth. W e have held that “[o]ne thing that is clear from Craw ford

is that the [Confrontation] Clause has no role unless the challenged out-of-court

statement is offered for the truth of the matter asserted in the statement.” United

States v. Faulkner, 439 F.3d 1221, 1226 (10th Cir. 2006). Here, M rs. W ade

complained that her husband was “going to get me put in jail over this.” Aplt.

App. at 52. As M r. W ade concedes, his wife’s statements were circumstantial

evidence offered to show that he “intended to commit the crimes for which he was

convicted.” Aplt. Br. at 9. Similarly, M r. Kennedy’s statement was not offered

- 11 - for the truth of whether M r. Kennedy had actually never seen a successful attempt

to use a UBO to shield income; it was offered to show that M r. W ade w as aware

that he should have reported income from the U BOs but that he willfully chose

not to do so. Both witnesses’ statements were offered to prove notice, and, as

such, their use did not implicate the Confrontation Clause.

In short, we conclude that these statements were non-testimonial, and thus

it was not error, plain or otherwise, to admit them.

4. M r. W ade’s A ffidavit

M r. W ade argues that the district court erred in admitting an affidavit he

signed in connection with a state court lawsuit that was litigated shortly before

his criminal trial began. In this affidavit, the W ades and their two sons affirmed

that they “or certain trusts or business entities legally or equitably owned by”

them ow ned the properties held by one of the UBOs at issue here. Aplt. App. at

191.

M r. W ade objected to the affidavit, arguing that it lacked an adequate

foundation and was unduly prejudicial because it was confusing. Id. at 183. To

authenticate the affidavit, the government was prepared to call John M ullen, an

attorney who represented the opposing party in the W ades’ lawsuit. The parties

presented a stipulated proffer of M r. M ullen’s testimony, which described the

nature of the law suit and identified the affidavit as the one that the W ade family

filed. Id. at 188-89. Following the proffer, the court asked if the stipulation

- 12 - included “the admission of [the affidavit] in a redacted form” and M r. W ade’s

counsel replied, “[s]ubject to prior discussions with the Court.” Id. at 189-90.

M r. W ade first contends that the affidavit should have been excluded

because it was irrelevant. W e review this ground for plain error because it was

not part of M r. W ade’s objection at trial. Under Rule 401, relevant evidence

“means evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable

that it would be without the evidence.” Fed. R. Evid. 401. M r. W ade was

charged with failing to list the UBOs among his assets during his bankruptcy;

thus, his subsequent sworn admission that he and his family were the equitable or

legal owners of one of the UBOs is highly probative of whether he committed

bankruptcy fraud. Admitting it was not plain error.

M r. W ade also argues that the affidavit should have been excluded because

it was unduly prejudicial. W e review this ground for an abuse of discretion

because it was raised at trial. Aplt. App. at 183-84. M r. W ade contends that the

affidavit was misleading and that it “suggested that [he] was engaged in ongoing

criminal activity.” Aplt. Br. at 20. Under Rule 403, relevant evidence “may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury . . . .” Fed. R. Evid.

403. The district court concluded that the affidavit had “substantial probative

value,” A plt. App. at 184, and we agree. Not only was the affidavit relevant to

- 13 - the bankruptcy fraud charges, it was probative of whether the income from the

entities M r. W ade claimed to own should have been included on his tax returns.

On the other hand, M r. W ade argues that the affidavit was prejudicial because it

was signed as the statement of all four members of the W ade family, not M r.

W ade alone, and that it could have been confusing because it required the parties

to educate the jury about the facts and claims in the state court civil suit. W ithout

doubt, these are valid concerns. However, given that the affidavit went to the

heart of several of the charges against M r. W ade and was a recent sworn

statement signed by him, we cannot say that the danger for prejudice substantially

outweighed its probative value. M r. W ade had an opportunity to explain the

circumstances of the affidavit to the jury. Aplt. App. at 255-56. The district

court did not abuse its discretion in admitting it.

5. M r. Hunter’s Testimony

In his defense, M r. W ade called Daniel Hunter, an attorney and CPA who

began representing him in 1998. M r. W ade now argues that the district court

erred in three rulings limiting M r. Hunter’s testimony. W e review the decision to

admit or exclude evidence for an abuse of discretion. Leonard, 439 F.3d at 650.

(a) M r. Hunter’s 1998 Advice to M r. W ade

M r. W ade’s attorney questioned M r. Hunter about discussions he had with

M r. W ade concerning tax shielding. See Aplt. App. at 201-02. The government

objected that the conversations w ere irrelevant because the UBOs w ere created in

- 14 - 1992, six years before M r. Hunter began representing M r. W ade. The district

court sustained the objection, and M r. W ade’s counsel made the following

proffer: “This advice was given before the filing of the bankruptcy and it would

have an effect on conduct the government here charges to be criminal[:] . . . his

state of mind at that time.” Id. at 201. The court replied: “For that limited

purpose, I’ll allow you to continue.” Id.

M r. W ade now argues that the district court abused its discretion in limiting

M r. Hunter’s testimony. However, the district court admitted the testimony for

precisely the reason his attorney claimed to be offering it. M r. W ade’s brief does

not explain why this limitation was an error or how else the testimony could have

been used. He also fails to explain how the limitation was prejudicial. W e

believe that the limitation was entirely reasonable in light of the proffer made by

M r. W ade’s counsel, and we consequently find no abuse of discretion.

(b) M r. Hunter’s Opinion of M r. W ade’s Level of Sophistication

M r. W ade next argues that the court erred in preventing M r. Hunter from

giving his opinion of M r. W ade’s level of sophistication in the area of grantor

trusts. Under Rule 701, a lay witness’s testimony “in the form of opinions . . . is

limited to those opinions . . . which are (a) rationally based on the perception of

the witness, [and] (b) helpful to a clear understanding of the witness’ testimony or

the determination of a fact in issue . . . .” Fed. R. Evid. 701. The government

contends that M r. Hunter’s opinion was inadmissible under Rule 701(b) because it

- 15 - was not helpful in understanding his testimony. 3 M r. Hunter had already testified

that the grantor trust rules in relation to revocable and irrevocable trusts are so

complicated that an ordinary layperson (and even an attorney or CPA without

experience) would not understand them upon reading them. See Aplt. App. at

203-04. W e agree that M r. Hunter’s opinion of M r. W ade would have added little

to clarify those statements; the jury could apply M r. Hunter’s testimony to M r.

W ade and reach its own conclusion. The district court did not abuse its

discretion.

(c) M r. Hunter’s Attempts to Settle M r. W ade’s Tax Debt W ith the IRS

M r. W ade contends that the court erred in excluding testimony by M r.

H unter and himself concerning attempts to settle his tax debt with the IRS. H e

argues that:

Wade would have testified that the IRS w as not interested in settling, that he intended to make a $2 million tax payment, and that he was willing to cooperate with a diversion agreement. All of this was relevant and admissible regarding Defendant’s state of mind and willfulness as to all charges.

Aplt. Br. at 22 (emphasis added). Significantly, M r. Wade offers no arguments

about what M r. Hunter would have said or how that would have been relevant and

admissible. M oreover, we fail to see how the attempts to settle the tax debt after

3 Of course, lay opinion testimony may also be used if it is “helpful to . . . the determination of a fact in issue.” Fed. R. Evid. 701(b). M r. W ade does not make this argument, so we need not consider whether the opinion could have been admitted for this reason.

- 16 - the charged offenses are relevant to his conduct beforehand. W e find no error.

6. M r. Roberts’s Testimony

M r. W ade next argues that the district court improperly permitted Steven

Roberts, a revenue agent, to testify against him as an expert summary witness.

M r. W ade’s objections to M r. Roberts’s testimony may be grouped into three

categories: (1) M r. Roberts testified about the law, which is impermissible under

Rule 702, Fed. R. Evid.; (2) M r. Roberts misstated the law in his testimony,

prejudicing the defendant and confusing the jury; and (3) M r. Roberts implied

that M r. W ade acted willfully, and an expert opinion about the defendant’s mental

state is forbidden by Rules 702 and 704(b), Fed. R. Evid.

M r. W ade contends that M r. Roberts’s testimony went beyond the

permissible scope of expert testimony because he “state[d] legal conclusions by

applying the law to the facts . . . .” Aplt. Reply Br. at 4. Specifically, he argues

that it was improper for M r. Roberts to testify that (1) the income was reportable

under the grantor trust rules because of the attributes of ownership maintained,

(2) the attributes of ownership included “control,” (3) the W ades should have

reported rental income from the UBOs on their income tax returns because the

trusts operated businesses, and (4) the rental income w as taxable to the W ades

because the UBOs were shams. W e note that M r. W ade did not object to much of

what he finds fault w ith here, suggesting that a plain error review is appropriate.

- 17 - Crockett, 435 F.3d at 1311. 4

As an initial matter, any expert must be qualified and his testimony must be

reliable, but M r. W ade did not object on those grounds. See United States v.

Pree, 408 F.3d 855, 870 (7th Cir. 2005). Substantively, “[w]hile testimony on

ultimate facts is authorized under Rule 704 . . . testimony on ultimate questions of

law is not favored [because it] . . . circumvents the jury’s decision-making

function by telling it how to decide the case.” Specht v. Jensen, 853 F.2d 805,

808 (10th Cir. 1988) (en banc). However, “[w]e do not exclude all testimony

regarding legal issues. W e recognize that a w itness may refer to the law in

expressing an opinion without that reference rendering the testimony

inadmissible. Indeed, a w itness may properly be called upon to aid the jury in

understanding the facts in evidence even though reference to those facts is

couched in legal terms.” Id. at 809. The crucial distinction lies between

“discoursing broadly over the entire range of the applicable law,” w hich is

improper, and “focus[ing] on a specific question of fact,” which is permissible.

Id.

4 M r. W ade’s counsel did object on the grounds that mere control of property transferred into an entity is not enough to make it a grantor trust. IV Aplee. App. at 515. The district court overruled the objection, and the next question by the prosecutor dealt with the specific facts of this case and whether the UBOs were grantor trusts. Id. at 516. M r. Roberts responded that they were, but that it would not be his primary audit position. Id. For reasons explained below, we conclude that the district court did not err in permitting this testimony; thus, it did not abuse its discretion in overruling the objection.

- 18 - In Specht, we concluded that it was error to allow a lawyer to testify as an

expert about the legality of searches. This testimony “painstakingly developed

over an entire day the conclusion that defendants violated plaintiffs’

constitutional rights” using a series of hypothetical situations to illustrate when

consent was validly given, when it was unnecessary, and when individual officers

could be held liable under 42 U.S.C. § 1983. Id. at 806-08. In the wake of

Specht, we have prohibited evidence that purely addresses questions of law. See,

e.g., United States v. W illie, 941 F.2d 1384, 1396 (10th Cir. 1991) (refusing to

allow a judicial opinion as evidence that the defendant’s tax position was taken in

good faith). On the other hand, we have allowed experts to apply the law to the

facts to reach a discrete legal conclusion relevant to the case. See, e.g., United

States v. Dazey, 403 F.3d 1147, 1172 (10th Cir. 2005) (allowing Federal Reserve

bank fraud expert’s opinion that the scheme at issue was a “prime bank fraud”

because “[e]ven if his testimony arguably embraced the ultimate issue, such

testimony is permissible as long as the expert’s testimony assists, rather than

supplants, the jury’s judgment”); see also Specht, 853 F.2d at 809 (“[A] court

may permit an expert to testify that a certain weapon had to be registered with the

Bureau of A lcohol, Tobacco, and Firearms.”).

W e have not specifically addressed the scope of permissible testimony by

an IRS w itness acting as an expert, but other courts have. In United States v.

W indfelder, the Seventh Circuit upheld the admission of testimony by IRS agents

- 19 - about the tax treatment of certain transferred assets, and it concluded that,

although the admission of other testimony (that a defendant intentionally

understated his income and was well aware of what happened to other assets) was

error, the error was harmless given overwhelming evidence of guilt. 790 F.2d

576, 582 (7th Cir. 1986). The court held, and we agree, that a properly qualified

IRS agent may analyze a transaction and give expert testimony about its tax

consequences but may not express an opinion about the defendant’s state of mind

at the time of the transaction. Id. at 581-82; see also United States v.

M ikutowicz, 365 F.3d 65, 72 (1st Cir. 2004). Some of that testimony necessarily

will include the agent’s understanding of the applicable law as a backdrop to

explaining how the government analyzed the transaction.

In light of these considerations, we conclude that the district court did not

err in allow ing M r. Roberts’s testimony. Although he reached legal conclusions,

he did so only after explaining his understanding of the relevant law and then

applying the facts as he understood them. His conclusions were presented as

opinions rather than unquestionable facts. M r. Roberts was cross-examined about

the bases for his conclusions, and the trial court gave specific instructions that his

testimony was expert opinion and that it was up to the jurors whether they wanted

to credit all of it, none of it, or parts of it. III Aplee. Supp. App. at 417, 422-23.

M r. W ade also objects to the substance of M r. Roberts’ testimony,

contending that parts of it were inaccurate or incomplete. M r. Roberts necessarily

- 20 - testified about entity taxation and transactions that have economic substance. H e

explained in layman’s terms that the income from the UBOs must be reported

somewhere, asserting his primary position that the UBO was an association or

proprietorship and that the income should have been reported on the W ades’

personal returns. IV Aplee. Supp. App. at 518. He further testified that his

secondary position was that the businesses were grantor trusts, and that such

trusts could file as corporations, partnerships, or proprietorships, depending upon

the circumstances. Id. at 517. Although M r. W ade argues that M r. Roberts took

too limited a view, failing to acknowledge the possibility of corporate filing

status, this is really beside the point: M r. Wade did not elect corporate status and

never filed corporate tax returns for the UBOs.

M r. W ade also argues that M r. Roberts spoke incorrectly when he indicated

that a trust will be deemed a grantor trust if the grantor retains “control” or

“ownership.” Although the testimony might not cover every situation, M r.

Roberts was using lay terms against the backdrop of what occurred here to refer

to the power to control the disposition of “the beneficial enjoyment of the corpus

or the income therefrom” under I.R.C. § 674(a). See Aplt. App. at 103 (“Q: W hat

attributes of ownership would you be talking about there? A: Being able to

receive the income and determine what happens to it. Being able to . . . do

whatever they want with the property . . . .”).

Finally, M r. W ade argues that M r. Roberts’s definition of a sham w as

- 21 - incomplete. M r. Roberts testified that a sham is “an arrangement that has been

set up that really lacks economic substance.” A plt. App. at 109. In response, M r.

W ade offers our language from Bohrer v. Commissioner:

[A] transaction will be accorded tax recognition only if it has economic substance which is compelled or encouraged by business or regulatory realities, is imbued w ith tax-independent considerations, and is not shaped solely by tax avoidance features that have meaningless labels attached.

945 F.2d 344, 347-48 (10th Cir. 1991) (internal quotation marks omitted). Given

this definition, we do not believe that M r. Roberts’s statement is inaccurate or

incomplete. The quoted language offers a definition of economic substance, but it

does nothing to displace the accuracy of the assertion that a sham is an

arrangement that lacks economic substance. M r. Roberts w as testifying to

practical application of the tax laws, not authoring a treatise.

M oreover, we reject M r. W ade’s contention that M r. Roberts gave

impermissible opinion testimony about M r. W ade’s state of mind by repeatedly

using the term “sham.” Aplt. Reply Br. at 5-7. W hile an objection to the

repeated use of the word “sham” might have been well taken, it was not made,

and we do not think that M r. Roberts crossed the line to impermissible state-of-

mind testimony. The district court’s decision to allow his testimony was not

7. The Proposed Jury Instruction

M r. W ade also contends that the district court erred in refusing to give one

- 22 - of his proposed jury instructions. 5 At the jury instruction conference, M r. W ade’s

5 The instruction provided:

The evidence in this case establishes that the individual income tax returns filed by Stanley and Janet W ade for the years 1991 through 2001 w ere prepared by M arvin H aney. M r. Haney also prepared certain corporate income tax returns for AP Construction, Inc., W ade Properties, Inc., and for various corporations, including Cherry Hills Apts., Inc., Del M onico Apts., Inc., El Caliente Apts., Inc., Hillrise Apts., Inc., La Parisenne Apts., Inc., Sade Apts., Inc., and Shangri-La, Apts., Inc.

M r. Haney is an account [sic] who prepares federal income tax returns for compensation. As such, M r. Haney is a “tax return preparer” as that term is defined in the Internal Revenue Code. Under the Internal Revenue Code, a tax return preparer may not give tax advice, or prepare and sign a return unless he believes that the tax reporting positions have a realistic possibility of being sustained if challenged by the Internal Revenue Service. This means that the tax return preparer must believe that the tax advice he is giving and the tax returns that he is preparing are supportable by a least a one- in-three possibility of success if challenged by the Internal Revenue Service. Thus, a return preparer may properly give advice, prepare and sign a tax return that he or she believes is likely to be wrong if challenged.

The reporting standard applied to a return preparer is higher than that which is applied to a taxpayer. To file a lawful tax return, the taxpayer’s position need only have a “reasonable basis.” A reasonable basis position is one which is “arguable” and not patently frivolous. A taxpayer may, therefore, lawfully take tax reporting positions which are highly likely to be wrong if challenged by the Internal Revenue Service.

Therefore, the Government must prove beyond a reasonable doubt that the Defendant, Stanley L. W ade, did not believe in good faith that his tax reporting position was arguable. If the prosecution does not prove this to your satisfaction, beyond a reasonable doubt, then you should find the Defendant not guilty.

- 23 - counsel stated: “I would like this charge in order to make . . . clear to the jury

that just aggressive conduct by itself is not sufficient with respect to the act of

taking a tax position itself.” IV Aplee. Supp. App. at 649. The court sustained

the government’s objection, explaining:

I believe that it would be extremely confusing to the jury. I believe it states a position on the law that the Court is not convinced is the law, maybe IRS practice, but that does not constitute the law. I think you have every opportunity in closing to make your point about M r. Haney’s role. . . . An instruction of a sort contemplated by No. 37 would add nothing to the jury’s understanding that would help them make the decision that they have to make.

Id. at 652.

“W e review for abuse of discretion a district court’s refusal to give a

particular instruction. In doing so, we also consider the instructions as a whole de

novo to determine whether they accurately informed the jury of the governing

law.” United States v. Serrata, 425 F.3d 886, 898 (10th Cir. 2005) (quoting

Bangert Bros. Const. Co. v. Kiewit W . Co., 310 F.3d 1278, 1287 (10th Cir.

2002)). W e agree with the district court that the instruction–attempting to define

negligence that might result in penalties for a tax return preparer not charged with

any wrongdoing and negligence that might result in a penalty for a taxpayer,

I.R.C. §§ 6662, 6694–was confusing and only minimally relevant to the criminal

charges in this case. Here, the jury was adequately instructed that M r. W ade’s

“conduct is not willful if you find that he failed to pay his income taxes because

Aplt. A pp. at 225-226.

- 24 - of negligence, inadvertence, accident, or reckless disregard for the requirements

of the law, or due to his good faith misunderstanding of the requirements of the

law.” III Aplee. Supp. App. at 400 (emphasis added). The court also instructed

that good faith was a complete defense. Id. at 415. These instructions addressed

M r. W ade’s concerns and properly stated the governing law. Thus, we conclude

that the district court did not abuse its discretion in refusing to give M r. W ade’s

proposed instruction.

8. The Objections to the Government’s Closing Argument

M r. W ade next asserts that the district court erred by allowing the

government to make prejudicial statements in its closing argument to the jury.

During the closing, M r. W ade’s counsel registered several objections, some of

which were sustained and others of which were overruled. On appeal, he points

to additional statements by the government that he believes his counsel should

have objected to but did not. He argues that the cumulative effect of all the

statements w as sufficiently prejudicial to warrant a new trial.

W here the trial court overrules an objection to a closing argument, we

review for abuse of discretion. United States v. Kravchuk, 335 F.3d 1147, 1153

(10th Cir. 2003). This requires a two-step analysis: “First, we decide whether the

conduct was improper. Second, we decide w hether the conduct, if improper,

w arrants reversal.” Id. (internal citation omitted). In making our inquiry, we

bear in mind that “a criminal conviction is not to be lightly overturned on the

- 25 - basis of a prosecutor’s comments standing alone, for the statements or conduct

must be viewed in context; only by doing so can it be determined whether the

prosecutor’s conduct affected the fairness of the trial.” United States v. Young,

470 U.S. 1, 11 (1985).

Of the statements raised in this appeal, only one was the subject of an

objection that was overruled. In reviewing, we must first consider whether it was

inappropriate for the prosecutor to state:

W e know that they got in a dispute over rents, and this man [M r. W ade] had a receiver appointed to guard that trust. You know we heard the evidence elicited by [M r. W ade’s attorney] about trusts, a trustee to conserve and to protect the assets of the trust. So they have a receiver who was a lawyer or an accountant, I’m sorry, a CPA named G il M iller who is with PriceWaterhouse accounting firm, one of the most famous accounting firms in the country.

Aplt. App. at 294. M r. W ade objected on the grounds that this information was

outside the record. The district court overruled the objection because it was part

of the proffered testimony of John M ullen, the defense attorney in M r. W ade’s

civil lawsuit. That proffer stated:

[I]f he were called to testify, [M r. M ullen] would testify that he represented Don Taylor, who . . . was appointed as the trustee of W ade M anagement UBO . . . . The case involved a dispute as between Don Taylor, the trustee, and the W ade family over who should have control over the rent collection of the UBO property that we’re dealing with in this case. M r. M ullen . . ., on behalf of the trustee, asked to have and indeed [had] a receiver appointed to control those collections. That receiver was an accountant with the firm of PriceW aterhouse and his name w as Gil M iller.

- 26 - Id. at 188. Thus, the court did not abuse its discretion in overruling the objection.

M r. W ade’s attorney also made two objections that were sustained during

the closing. The first followed this argument by government:

M embers of the jury, I think it’s important probably here for just a minute to talk about the very brief context we have for this [state court civil] suit. Do you see what happened? A s it was recited in the proffer, M r. W ade appointed a man named D on Taylor to act as trustee for W ade M anagement UBO. Then a horrible thing happened to M r. Wade, M r. D on Taylor started to act like a real trustee. He started to worry about the rents.

Id. at 293-94. W hen M r. W ade’s counsel objected on the grounds of hearsay and

lack of evidence, the court sustained the objection. Id. at 294.

Later, the government turned its attention to M r. Haney, M r. W ade’s

accountant. It stated:

[I]f you just think about the facts surrounding [M r. Haney], and you saw him, I mean he doesn’t–you can make your own judgments about him, but he operates out of his house. He doesn’t have a big office like M r. Steorts or M r. Black. He is in deep trouble. W hy is he in deep trouble? Because he’s fresh out of jail and M r. W ade–

Id. at 299. M r. W ade’s attorney again objected, and the court sustained the

objection because “[t]here is no evidence about him being in trouble . . . .” 6 Id.

M r. W ade’s attorney did not object to the other snippets of testimony that

M r. W ade raises in this appeal. He claims that the statement “M r. W ade can’t

take it because he cannot have that sham treated as real” w as prejudicial. Aplt.

6 Somewhat troubling in the government’s argument is the notion that the location of where professional services are rendered is indicative of their legitimacy and quality.

- 27 - App. at 294. He also objects to the characterization of M r. Haney–a prosecution

witness–as “that old stock fraud artist,” id. at 298, who was “fresh out of jail,”

id. at 299. M r. W ade asserts that these statements, when considered together with

those to which his attorney did object, “went beyond allowable limits of advocacy

. . . affecting the Defendant’s substantial rights to due process.” Aplt. Br. at 24.

W here counsel fails to object to a statement made during a closing

statement, we review for plain error. United States v. Dazey, 403 F.3d 1147,

1170 (10th Cir. 2005). In so doing, we must consider the comments in “the

context of the entire case.” United States v. Hernandez-M uniz, 170 F.3d 1007,

1011 (10th Cir. 1999). To warrant reversal, the plain error “must be so egregious

as to result in a miscarriage of justice.” Id. (internal quotation marks omitted).

The statement “M r. W ade can’t take it because he cannot have that sham

treated as real” is improper to the extent it is construed as a personal attack on

M r. W ade, but the surrounding comments make it clear that the prosecutor was

pointing out the inconsistent positions concerning the UBOs that M r. W ade was

forced to take. M oreover, the government’s entire case was that the U BOs were

sham entities, designed to defraud the IRS and later his bankruptcy creditors.

On the other hand, the government’s statements characterizing M r. Haney

as a “stock fraud artist” and claiming M r. Haney was “in big trouble” w ere

improper. Although he w as a prosecution witness, M r. Haney was hired by M r.

W ade, and M r. W ade w as understandably concerned that their business

- 28 - association could have affected the jury’s perception of him. W e do not,

however, think that these statements resulted in reversible plain error when

considered in light of the entire record and the overwhelming evidence of guilt

therein. M r. Haney’s felony conviction for securities fraud was already in

evidence. The statement that he was fresh out of jail was the subject of an

objection that was sustained, and the court reminded the jury that there was no

evidence that M r. Haney was in trouble. A plt. App. at 299. That was sufficient.

9. M r. W ade’s Sentencing

Finally, M r. Wade asserts that his attorney was not given enough time to

present his sentencing arguments to the district court. Rule 32(I) requires that the

sentencing court must “provide the defendant’s attorney an opportunity to speak

on the defendant’s behalf . . . [and] permit the defendant to speak or present any

information to mitigate the sentence . . . .” Fed. R. Crim. P. 32(i)(4)(A). Here,

the district court allowed both M r. W ade and his attorney, Randall Gaither, to

speak. M r. W ade contends that the district court violated Rule 32 by stopping

M r. Gaither after an hour and a half of argument and then denying his motion to

allow more time to address the court or to continue the hearing. He argues that

most of the first hour and a half was spent making objections to the presentence

report (“PSR”) as permitted by Rule 32(i)(1)(C) and that the ten minutes allowed

for the downward departure motion was insufficient under Rule 32(i)(4)(A). See

Aplt. Reply Br. at 15.

- 29 - W e review the district court’s decision to limit an attorney’s opportunity to

address the court pursuant to Rule 32(i)(4)(A ) for an abuse of discretion. It is

well established that a district court may place reasonable limits on the amount of

time for allocution by the defendant consistent with Rule 32. See, e.g., Ashe v.

North Carolina, 586 F.2d 334, 336-37 (4th Cir. 1978) (“This is not to say that a

defendant’s right to address the sentencing court is unlimited. The exercise of his

right may be limited both as to duration and as to content. He need be given no

more than a reasonable time . . . .”). Likewise, we believe Rule 32 permits

reasonable limitations on the time given to counsel to address the court at

sentencing.

The court noted early on that it had read the considerable material filed by

the defense and advised M r. Gaither to “spend some time on those matters that are

going to determine or decide whether or not your client serves and how long.”

Aplt. App. at 310. After allowing M r. Gaither to argue sixteen more objections to

the PSR, the court gave him ten minutes to argue his motion for downward

departure, which had also been fully briefed. M r. Gaither sought additional time

or a continuance to address various sentencing factors, but his request was denied.

After M r. W ade was given “as long as he would like” to address the court, id. at

354, the court imposed sentence.

It is significant that M r. Gaither was given multiple opportunities to

address the court orally and in writing and that M r. W ade had unlimited time to

- 30 - speak. M oreover, M r. W ade points to nothing that M r. Gaither planned to say

that might have affected his sentence. On these facts, we find no abuse of

M r. W ade advances three further arguments. He first contends that the

district court applied the Sentencing Guidelines in a mandatory fashion, violating

United States v. Booker, 543 U.S. 220 (2005). However, the court explicitly

stated at sentencing that “it is clear that under Booker and subsequent case law,

while the Sentencing Guidelines are now advisory, a sentencing court must

consider the guideline calculations in determining what is ultimately a reasonable

sentence . . . .” Aplt. App. at 335. M r. W ade also asserts that the district court

calculated his sentence based upon factual findings not made by the jury in

violation of Blakely v. W ashington, 542 U.S. 296 (2004). Under Booker, judicial

factfinding is entirely permissible as long as the guidelines are not applied as

mandatory. 543 U.S. at 233; see also United States v. Visinaiz, 428 F.3d 1300,

1316 (10th Cir. 2005). Here, the district court properly recognized that the

guidelines are advisory, so no constitutional violation occurred.

Finally, M r. Wade contends that the district court erred by declining to

consider mitigating evidence at sentencing. Aplt. Br. at 29. Specifically, he

argues that the district court was required to consider “the nature and

circumstances of the offense, the history and characteristics of [the] defendant,

and the need for the sentence in light of sentencing purposes,” Aplt. Br. at 28

- 31 - (citing 18 U.S.C. § 3553(a)), as well as a laundry list of other factors from

U.S.S.G. §§ 5H1.1-5H1.12. W e have held that a district court need not “march

through” every factor it considers in arriving at a reasonable sentence. United

States v. Rines, 419 F.3d 1104, 1107 (10th Cir. 2005). Here, it is apparent that

the court carefully considered several pertinent factors, and M r. W ade has not

demonstrated that the court failed to consider others, let alone that any factor not

considered would have affected his sentence. Aplt. App. at 361-65.

A FFIR ME D.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge

- 32 -