Petition for Writ of Certiorari — Lewis v. United States

(1) Supreme Court, U8.

l FILED

No.__ 001605 APR 1 7 200

In The FFICE OF THE CLERK

Supreme Court of the United States

VERNA M. LEWIS,

Petitioner,

V.

UNITED STATES OF AMERICA,

- Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Anthony F. Anderson, Esquire

Melissa W. Friedman, Esquire

1102 Second Street, SW

Post Office Box 1525

Roanoke, Virginia 24007

(540) 982-1525

Attorney for Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

Uo }

TABLE OF CONTENTS

TABLE OF AUTHORITIES

QUESTIONS PRESENTED

OPINION BELOW

JURISDICTION

STATUTES INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

ADDENDUM

26

ii

TABLE OF AUTHORITIES

CASES

Apprendhi v. New Jersey, 530 U.S. ;

147 L.ED. 435 (2000)

Cheek v. United States, 498 U.S. 192 (1991)

McFarland v. Smith, 611 F.2d 414

(2d Cir. 1979)

Mathews v. United States, 485 U.S. 58 (1988)

Miller v. North Carolina, 583 F.2d 701

(4 Cir. 1978)

United States v. Bailey, 123 F.3d 1381

(11 Cir. 1997)

United States v. Bertoli, 40 F.3d 1384

(3 Cir. 1994)

U.S. v. Brockingham, 849 F.2d 872

(4" Cir. 1988)

U.S. v. Cannon, 88 F.3d 1495

(8" Cir. 1996)

United States v. Clark, 45 F.3d 1247

(8" Cir. 1995)

United States v. Cogdell, 844 F.2d 179

(4" Cir. 1988)

United States v. Cooper, 35 F:3d 1248

(8" Cir. 1994)

23,24,25

14

16

14

17

23

23

16

17

12

12

23

U.S. v. Doe, 903 F.2d 16

(D.C. Cir. 1990)

United States v. Heater, 63 F.3d 311

(4" Cir. 1995)

U.S. v. Hernandez, 865 F.2d 925

(7" Cir. 1989)

U.S. v. Mitchell, 1 F.3d 235

(4 Cir. 1993)

U.S. v. Moore, 11 F.3d 475

(4" Cir. 1993)

United States v. Morris, 20 F.3d 1111

(11 Cir. 1994)

United States v. Ortland, 109 F.3d 539

(9" Cir. 1997)

United States v. Regan, 989 F.2d 44

(1° Cir. 1993)

STATUTES

26 U.S.C. Section 7206

26 U.S.C. Section 7212

18 U.S.C. Section 1001

U.S.S.G. Section 1B1.11

17

22

17

16,20

18

14

23

23

4,5

22

OTHER AUTHORITIES

E. Devitt, C. Blackmar & M. Wolff

Federal Jury Practice and Instructions, $15.12

(3d ed. 1987) 12

The Hutchinson Encyclopedia 15

Puckett, Newbell, Folk Beliefs of the Southern Negro,

(The University of North Carolina Press, 1926) 16

QUESTIONS PRESENTED

WHETHER THE WRIT SHOULD BE

GRANTED BECAUSE THE FOURTH

CIRCUIT HAS SANCTIONED DECISIONS

BY THE TRIAL COURT THAT CONFLICT

WITH OTHER COURTS OF APPEALS OR

WITH RELEVANT DECISIONS OF THIS

COURT INCLUDING THE READING OF A

FALSE EXCULPATOY STATEMENT

INSTRUCTION DISAPPROVED BY THE

EIGHTH CIRCUIT; THE REFUSAL OF

DEFENDANT'S PROFFERED THEORY OF

DEFENSE GOOD FAITH INSTRUCTION IN

CONTRADICTION OF ELEVENTH

CIRCUIT PRECEDENT; AND, AFFIRMING

UNCONSTITUTIONALLY IMPROPER

REMARKS BY THE PROSECUTION IN

CLOSING ARGUMENT.

WHETHER THE WRIT SHOULD BE

GRANTED BECAUSE THE FOURTH

CIRCUIT'S DECISION REGARDING

WHICH GUIDELINES BOOK TO USE

CONFLICTED WITH THE DECISIONS OF

OTHER CIRCUIT COURTS OF APPEALS.

WHETHER THE WRIT ~ SHOULD BE

GRANTED BECAUSE THE OPINION OF

THE COURT OF APPEALS CONFLICTS

WITH THIS COURT'S DECISION IN

APPRENDI V. NEW JERSEY, 530U.S.__,

147 L.ED. 435 (2000)

3

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1999

VERNA M. LEWIS,

Petitioner,

v,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE FOURTH CIRCUIT COURT OF APPEALS

Verna M. Lewis petitions for a writ of certiorari to

review a judgment of the Fourth Circuit Court of Appeals

affirming her conviction and sentence in the United States

District Court for the Western District of Virginia.

OPINION BELOW

The opinion of the Fourth Circuit Court of Appeals

affirming Lewis’s conviction is published and reproduced at

Appendix 1. United States of America v. Lewis,

F.3”. (4™ Cir. 2000).

JURISDICTION

The judgment of the Fourth Circuit Court of Appeals

was entered on December 19, 2000, and the Defendant filed

a timely petition for rehearing and petition for rehearing en

banc. Those petitions were denied on January 18, 2001.

This Court has jurisdiction pursuant to 28 U.S.C. Section

1254. The Fourth Circuit Court of Appeals had jurisdiction

by virtue of 28 U.S.C. Section 1291.

STATUTES INVOLVED

26 U.S.C. Section 7206(1)

Declaration under penalties of perjury. Willfully

makes and subscribes any return, statement, or other

document, which contains or is verified by a written

declaration that it is made under the penalties of perjury, and

which he does not believe to be true and correct as to every

material matter; or 26 U.S.C. Section 7212(a)

Attempts to interfere with administration of Internal

revenue laws. (a) Corrupt or forcible interference. Whoever

corruptly or by force of threats of force (including any

threatening letter or communication) endeavors to intimidate

or impede any officer or employee of the United States

acting in an official capacity under this title, or in any other

way corruptly or by force or threats of force (including any

threatening letter or communication) obstructs or impedes, or

endeavors to obstruct or impede, the due administration of

this title, shall, upon conviction thereof, be fined not more

- than $5,000 or imprisoned not more than 3 years, or both,

except that if the offense is committed only by threats of

force, the person convicted thereof shall be fined not more

than $3,000, or imprisoned not more than 1 year, or both.

The term “threats of force”, as used in this subsection, means

threats of bodily harm to the officer or employee of the

United States or to a member of his family.

STATEMENT OF THE CASE

This criminal tax case involved the alleged filing of

false tax returns by Verna M. Lewis, a physician. The district

court had jurisdiction pursuant to 18 U.S.C. Section 3231 and

the Court of Appeals had jurisdiction pursuant to 28 U.S.C.

Section 3742.

She was convicted of eight tax-related offenses and

sentenced to eighteen months incarceration, a fine of

$10,000.00, and restitution of $105,651.59.

The United States accused Dr. Lewis of taking

personal expenses as business deductions in tax years 199],

1992, and 1993 in violation of 26 U.S.C. Section 7206. She

also was convicted of making false statements to and

providing false documents to an IRS agent during the course

of a civil tax audit in violation of 26 U.S.C. Section 7212 and

18 U.S.C. Section 1001.

On appeal, the Fourth Circuit Court of Appeals left

unaddressed Dr. Lewis’s issues that challenged her convictions

and affirmed the jury’s verdict. With regard to seritencing, the

appellate court reversed the award of restitution and affirmed

the remainder of the sentence.

The facts presented at trial indicated that in 1988.

Lewis accepted a position as a physiatrist, a specialty of

medicine that deals with physical medicine and rehabilitation,

at Lewis-Gale Hospital, in Roanoke, Virginia.

In 1988, Dr. Lewis and Lewis-Gale Hospital entered

into a guaranteed income agreement. It provided Dr. Lewis an

income guarantee with advances of income made to her on a

quarterly basis. Pursuant to the Agreement, Dr. Lewis

received income in 1988 and 1989 for which she received IRS

Form 1099's and which she declared as income. After two

quarterly payments, an accounting determined that her actual

income was greater than the guaranteed sum. Consequently,

she entered a promissory note with the Hospital requiring her

to make monthly payments to the Hospital until the

$39,909.00 was repaid. Thus, she paid the Hospital monthly

payments totaling $12,000.00 in 1990, $24,000.00 in 1991.

and the remainder of the advance in 1992.

In 1988, Dr. Lewis hired the CPA, William White of

Saunders and White, to assist her with the accounting for her

practice and to prepare her tax returns. White provided her

with a “one-write” accounting system. The system included

checks and a carbon journal beneath the checks that in theory

recorded the date, amount, and purpose of the check

simultaneously with the writing of the check.

The evidence indicated that the Hospital provided Dr.

Lewis an office, cleaning services, and repair and

maintenance. However until December, 1994, Dr. Lewis's

office was barely adequate. It was an old patient’s room with a

desk, a filing cabinet and a couple of plastic chairs. It

contained no bookcases or amenities. As a result, in the spring

of 1990. Dr. Lewis began the construction of an addition to her

home which was composed of an office and a room with

exercise equipment.

In 1993, Randy O'Neill. an IRS auditor, targeted Dr.

Lewis as part of a special audit project involving physicians

who received guaranteed income agreements. Initially, the

audit was specifically tailored to the guaranteed income

payments. Thus, in November 1993, O’Neill telephoned Dr.

Lewis regarding the audit. In tum, Dr. Lewis executed a

power of attorney to White so he could assist her in the audit.

White advised Lewis that the guaranteed income

payments had been treated wrongly and that she should

prepare amended returns immediately that excluded the

guaranteed income repayments in years 1990, 1991, and 1992.

Following White’s advice, Lewis signed the amended returns

he had prepared, and on December 10, 1993, Lewis and White

delivered the amended returns and a $20,000.00 check to

O'Neill.

O'Neill was surprised by this response to his audit. It

raised a red flag, and O'Neill decided to expand the audit to all

tax issues related to tax years 1990, 1991, and 1992. He

issued information document requests to White and Dr. Lewis,

and throughout the first part of 1994, Dr. Lewis provided

numerous documents and written responses to O'Neill.

The United States argued that the audit uncovered the

deduction of personal expenses as business deductions. Those

deductions included the following

The first were guaranteed income repayments. Dr.

Lewis deducted the payments she made to Lewis-Gale

Hospital to repay the guaranteed income advancement made to

her in 1988 and 1989. Because Dr. Lewis had claimed the

advancements as income in 1988 and 1989, the repayments

were deductible in the years she paid them, 1990, 1991, and

1992. This deduction was complicated by the fact that White

deducted the payments under the Schedule C Category “rent,”

and they were not rent payments. Nevertheless, regardless of

how they were classified, they were deductible.

White further complicated the matter, however, by

deducting the total of the payments in 1989 in anticipation of

the repayments. Even the government’s expert witness

testified that this was not the proper way to handle the income

repayments. This was an accounting error that did not involve

Dr. Lewis. She did not understand the law of guaranteed

income repayments.

When the audit process began, White advised Lewis

the repayments/rent payments should not have been deducted

and he advised her to file the amended returns for 1990, 1991,

and 1992 and deliver them to O'Neill on December 10, 1993,

with a $20,000.00 check.

The second questioned deductions were those

involving the office in Dr. Lewis's home. When Dr. Lewis

constructed the addition to her home containing an office and

second room with exercise equipment, she intended to use the

office and exercise room solely for business purposes. She

never saw patients or held business meetings in her office at

home. However, she did research there, dictated there and

stored patient files on her computer there. In addition, Dr.

Lewis performed consulting and expert witness services which

She prepared in her office at home.

Dr. Lewis purchased the exercise equipment for

business purposes as well. She testified:

“| decided to use the equipment to ensure that when |

prescribed exercises, therapeutic intervention for my

patients, that I made sure as a well-bodied person that I

could actually perform these myself and also to try and

make sure that if there were any difficulties in

performing a certain task that I might prescribe for my

patients, 1 would hopefully recognize them before

doing so”.

When Dr. Lewis discussed the office with White he

told her, “It will be too complicated to try and depreciate the

building. but if you use items within your home for business

purposes, then those items should be deducted.”

Thus. Dr. Lewis paid for the furniture, bookcases, and

exercise equipment for the addition out of her business

account and gave the receipts to White. White then began a

schedule of depreciation over a 10-year life.

At trial, the United States surmised that because Dr.

Lewis had an office at Lewis-Gale Hospital, nothing in her

home could be a deductible business expense. Thus, the

government considered all deductions for the depreciation of

assets in the home office and exercise room fraudulent.

However. uncontradicted expert testimony showed that

the physical location of property did not determine its business

use.

The final category of deductions taken by Dr. Lewis

involves those expenses that for purposes of this brief will be

considered strictly personal.

Dr. Lewis deducted a portion of the wages she paid her

domestic worker, Ellen Teaford, who cleaned her home. She

also deducted payments to Barry Williamson, who provided

landscaping and lawn maintenance that Dr. Lewis attributed to

the office addition to her home. She deducted payments made

to Linwood Twine who constructed a patio at her home. She

deducted a portion of the payments she made for a time-share

at Stoney Creek Resort and one in the Bahamas, Diva Resorts.

During the audit White and Dr. Lewis provided

O’Neill with two documents involving a worker named

Linwood Twine that O'Neill believed were suspicious. When

he brought them to White’s attention, White advised Dr. Lewis

to seek counsel. She suggested an attorney she had used

previously, but White convinced her to retain his friend, a co-

city councilman.

In the latter half of 1994, the civil audit became a

Criminal investigation. Two Special Agents in the Criminal

Division of the IRS investigated the case. During the course

of the investigation they conducted a recorded question and

answer session with White. Lewis’s attorney also attended.

During the question and answer session, White admitted that

when he executed the amended returns he knew that they

contained false or misleading information. He stated he knew

there were student loan expenses that were improperly

deducted. It was his intention to let the audit run its course and

to make those adjustments when he received the report from

O'Neill. At trial White stated, “I recognized that it was several

things in these returns that could be debatable, and rather than

isolate on one thing, I was prepared to wait until he presented

the items in question, and if he picked up student loans, you

know, it had to be excluded.”

The IRS Special Agent in charge of White's

investigation recommended that White be prosecuted.

On March 20, 1997, Lewis’s counsel met with a tax

division representative to plead Dr. Lewis’s case. At that time

he stated he was a friend of White, he served on city counsel

with White, if the case went to trial he would not blame

anything on White, and White would not have given bad

advice.

Five days later, on March 25, 1997, the Chief Counsel

of the IRS declined to refer White's case to the Department of

Justice for prosecution. In October, 1997, White formally

received immunity from prosecution and agreed to testify

before the grand jury investigating Dr. Lewis.

White not only avoided prosecution, he avoided being

reported to the Director of Practice. The evidence indicated

10

that IRS officials are required to report to the Director of

Practice return preparers who are identified as either fraudulent

Or not proper return preparers. No such report was issued

regarding William White.

Lewis was never questioned by the IRS Special

Agents. She was never given the benefit of a full civil audit.

In 1996, Dr. Lewis terminated the services of William

White and employed those of Samuel Golston, a CPA. In

addition, Dr. Lewis incorporated her practice.

During the course of the trial, the United States

subpoenaed Dr. Lewis’s individual and corporate business

journals. From these journals, the Untied States presented

evidence that Dr. Lewis had paid Ellen Teaford from the

corporate business account for her cleaning services in 1997.

This expense was deducted as a business expense. In addition,

the depreciation for the office furniture and exercise

equipment also was deducted.

Subsequent to the jury’s guilty verdict, a presentence

report was prepared. It recommended a tax loss of $41,571.00,

including federal and state income tax loss, but it provided no

reasoning for that amount. The Defendant objected to the

recommendesc tax loss.

At sentencing, both parties presented evidence through

expert witnesses as to the correct calculation of tax loss. Three

issues evolved: (1) whether to include the guaranteed income

repayments (“rent”) in the tax loss; (2) whether to credit the tax

loss with accounting errors made by White that benefitted the

IRS; and, (3) whether the depreciation of office furniture and

exercise equipment and an Encyclopedia Britannica should be

included as fraudulent depreciation.

In addition, the parties disagreed upon whether the

1992 or 1997 Sentencing Guidelines Manual should apply.

The Defendant’s expert concluded that the correct tax

loss was $13,103.00. This figure was calculated by accepting

the government's trial exhibit of fraudulent deductions, and

deducting White’s errors, the depreciation and _ the

encyclopedia.

1l

The United States concluded that the tax loss was

$47,617.90. This figure was calculated by taking the

government's trial exhibit of fraudulent deductions and adding

the “rent” and the deductions taken in later years for Ellen

Teaford’s payments and depreciation carried over from the

indictment tax years.

The Court admitted that he could not segregate the

fraudulent deductions from those that simply were negligent.

Because he could not make that determination, he accepted the

United States’ exhibit 3, and found the tax loss to be greater

than $40,000.00.

REASONS FOR GRANTING THE WRIT

1.

THE WRIT SHOULD BE

GRANTED BECAUSE THE

FOURTH CIRCUIT HAS

SANCTIONED DECISIONS BY

THE TRIAL COURT THAT

CONFLICT WITH OTHER

COURTS OF APPEALS OR WITH

RELEVANT DECISIONS OF THIS

COURT INCLUDING THE

READING OF A FALSE EXx-

CULPATORY STATEMENT

INSTRUCTION DISAPPROVED

BY THE EIGHTH CIRCUIT; THE

REFUSAL OF DEFENDANT'S

PROFFERED THEORY OF DE-

FENSE GOOD FAITH INSTRUC-

TION IN CONTRA-DICTION OF

ELEVENTH CIRCUIT PRE-

CEDENT; AND, AFFIRMING

UNCONSTITU-TIONALLY __IM-

PROPER RE-MARKS BY THE

PROSECUTION IN CLOSING

ARGUMENT.

12

A. THE TRIAL COURT READ A

FALSE EXCULPATORY STATE-

MENT INSRUCTION THAT WAS

AN INCORRECT STATEMENT

OF LAW

Dr. Lewis challenged the Court's reading of the

following instruction, “when a Defendant voluntarily and

intentionally offers an explanation or makes some statement

tending to show her innocence and this explanation or

statement is later shown to be false, you may consider whether

this evidence points to a consciousness of guilt. The

significance to be attached to such evidence is a matter for you

to determine.” Defendant objected to the giving of this

instruction.

She also appealed the Court’s decision io read

the instruction to the Court of Appeals. By affirming the

district court’s decision regarding this instruction, the Court of

Appeals contradicted the position of the Eighth Circuit Court

of Appeals.

The “false exculpatory statement” instruction

given in this case was erroneous. Dr. Lewis testified at trial.

When a defendant testifies at trial it is improper to give the

“false exculpatory statement” instruction unless the instruction

is clearly limited to pre-trial false exculpatory statements.

United States v. Clark, 45 F.3d 1247, 1251 (8" Cir. 1995). In

addition, Dr. Lewis made no pre-trial false exculpatory

Statements subsequent to the instigation of the criminal

investigation. Consequently, the instruction was unnecessa‘fy.

In United States v. Cogdell, 844 F.2d 179 (4"

Cir. 1988), the Fourth Circuit approved the “false exculpatory

Statement” instruction contained in E. Devitt, C. Blackmar &

M. Wolff Federal Jury Practice and Instructions, §15.12 (3d

ed. 1987). That instruction provided, “conduct of a defendant

including statements knowingly made and acts knowingly

done, upon being informed of the crime that has committed or

upon being confronted with criminal charges may be

considered by the jury... .” Cogdell, 844 F.2d at 181, quoting,

E. Devitt, C. Blackmar, M. Wolff at §15.12.

Therefore the Cogdell instruction makes clear

that the false statements referred to are those made by the

defendant when confronted with criminal accusations prior to

trial rather than the defendant's trial testimony. Without that

distinction, when the defendant has testified at trial the

instruction improperly emphasizes the defendant’s testimony

and improperly comments on the defendant’s credibility at trial

— a matter within the sound discretion of the jury.

In Clark the Court held that giving an

instruction identical to the one at issue in this case was error.

However, it decided that the error was harmless because the

Court also had instructed the jury that the defendant's trial

testimony should be judged in the same fashion as that of other

witnesses. In the instant case, the Court did not give this

Saving instruction, and the jury was left to assume that the

“false exculpatory statement” instruction applied to the

defendant’s trial testimony. Furthermore, the instruction was

particularly improper under the circumstances of this case

because once the IRS instituted a criminal investigation

against Dr. Lewis she made no statements in response to the

charges or accusations.

Thus, the jury only could have applied the

instruction to Dr. Lewis’s trial testimony. The implication was

that if it did not believe Dr. Lewis’s explanation at trial, then it

could consider her testimony as consciousness of guilt. This is

clearly reversible error, and the convictions should be

reviewed by this Court and reversed.

B. THE COURT ERRED IN REFUSING

TO GIVE THE DEFENDANT'S

PROFFERED THEORY OF DEFENSE

GOOD FAITH INSTRUCTION.

The Defendant proffered a defense of good

faith instruction to the Court as to Counts Five, Six, Seven,

14

and Eight. The Court refused the instruction. Generally

speaking, a defendant is entitled to a jury instruction if: (1)

there is a foundation in law and evidence to support it; and, (2)

it is requested. Mathews v. United States, 485 U.S. 58, 63

(1988). In the instant case, the Defendant's proffered

instruction was supported by the law and the evidence. The

Defendant's good faith belief that she was not violating tax

laws is indeed a defense to the tax charges in the indictment.

Cheek _v. United States, 498 U.S. 192, 202 (1991).

Furthermore, the evidence supported the Defendant’s belief

that she took the deductions at issue because she believed

them to be lawful even if that belief was unreasonable.

Yet, the Court refused the instruction. The

Court indicated that its definition of “willfully” and

“knowingly” encompassed the good faith defense. However,

those instructions were not included within the instruction

setting forth the elements of 26 U.S.C. § 7206. Therefore.

they did not serve to alert the jury to good faith as a defense to

that offense. For example, although the Court instructed the

jury that “knowingly” means that the act was done voluntarily

and intentionally and not because of mistake or accident, the

Court's instruction concerning the elements of 26 U.S.C. §

7206 did not include the requirement that the Defendant acted

“knowingly”. Thus, the instructions as a whole do not

properly inform the jury of the defense of good faith, and it

was error not to give the Defendant’s proffered good faith

instruction. United States v. Morris, 20 F.3d 1111, 1113 (11"

Cir. 1994): see, Cheek v. United States, 498 U.S. 192 (1991).

In Morris, the Court held that instructions similar to those in

the case at bar were inadequate to convey properly the asserted

zo0od faith defense. The Court explained that “in defining the

elements of the crime, the court used the term ‘willfully’, but

not ‘knowingly’. This was not an incorrect statement of the

law in itself. Later in the instructions, however, the court

defined the term ‘knowingly’ as meaning ‘that the act was done

voluntarily and intentionally without mistake or accident’. The

15

only mention of mistake or accident in the relevant portion of

the charge is found in the definition of ‘knowingly’. However,

that term was not part of the court’s definition of the crime

itself; therefore, the jury under these instructions, was not

adequately directed to consider the appellant's mistake-of-law-

or fact defense.” Jd. at 1117.

The instructions in the instant case have

exactly the problems addressed in the Morris case. Therefore,

the Fourth Circuit's affirmance in this case is in conflict with

one of her sister circuits, and this matter should be reviewed

by this Court.

Cc. IMPROPER REMARKS BY THE

GOVERNMENT DURING TRIAL SO

INFECTED THE TRIAL WITH

UNFAIRNESS AS TO MAKE THE

RESULTING CONVICTION A DENIAL

OF DUE PROCESS.

The standard of review for this question is

plain error as it was not raised during trial.

During the United States’ closing argument. the

prosecutor argued, “Consider the fact that [Dr, Lewis is] also

hoodooing Mr. Golston still, recently.” This comment

associated Dr. Lewis, an African-American physician, with the

black witch doctors of Africa, the West Indies, and the deep

South. In so doing. the remarks improperly projected race into

the jury’s deliberations.

In Webster's Dictionary, “Hoodoo” is defined

as “voodoo”, and “voodoo” is defined as “a primitive religion

based on a belief in sorcery and in the power of charms,

fetishes, etc.; it originated in Africa and is still practiced.

chiefly by natives of the West Indies.”

In The Hutchinson Encyclopedia, “voodoo” is

described as a “set of magical beliefs and practices, followed

16

in some parts of Africa, South America, and the West Indies,

especially Haiti. It arose in the 17" Century on slave

plantations as a combination of Roman Catholicism and West

African religious traditions: believers retain membership in the

Roman Catholic church. It was once practiced in New Orleans

and other areas of southern USA by African-Americans."

The racial nature of the word, “Hoodoo”, is

described in the book. Folk Beliefs of the Southern Negro.

That resource makes abundantly clear the association of the

“Hoodoo” doctor with a black witch doctor who engages in

conjuration and voodoo. Puckett, Newbell, Folk Beliefs of the

Southern Negro, (The University of North Carolina Press,

1926).

Therefore, in stating that Dr. Lewis had

“Hoodooed” Golston, the government improperly reduced her

position as an African-American physician to a “Hoodoo-

doctor” who uses magic and conjuration.

“Improper remarks during closing argument do

not always mandate retrial. The relevant question is whether

the prosecutor’s comments so infected the trial with unfairness

as to make the resulting conviction a denial of due process.

U.S. v. Mitchell, 1 F.3d 235, 240 (4" Cir. 1993). The test for

reversible prosecutorial misconduct generally has two

components: that (1) the prosecutor’s remarks or conduct must

in fact have been improper, and (2) such remarks or conduct

must have prejudicially affected the Defendant's substantial

rights so as to deprive the Defendant of a fair trial. /d.; U.S. v.

Brockingham, 849 F.2d 872, 875 (4" Cir. 1988).

There is no question that remarks that inject

race into a trial are improper. In McFarland v. Smith, 611

F.2d 414 (2d Cir. 1979), the Court aptly explained that when

race is injected into a criminal trial the Defendant’s rights

under both the due process and equal protection clauses are

offended. /d. at 416.

Federal Courts have long condemned racially

inflammatory remarks during governmental summation.

“Racial fairness of the trial is an indispensable ingredient of

17

due process and racial equality is a hallmark of justice.

Appeals to racial passion can distort the search for truth and

drastically affect a juror’s impartiality.” U.S. v. Doe, 903 F.2d

16, 25 (D.C. Cir. 1990). See also, U.S. v. Hernandez, 865 F.2d

925 (7" Cir. 1989) (the Constitution prohibits a prosecutor

from making race-conscious arguments since it draws the

jury's attention to a characteristic that the Constitution

generally demands that the jury ignore).

Recently, in U.S. v. Cannon, 88 F.3d 1495 (8"

Cir. 1996), the Eighth Circuit reversed defendants’ convictions

where during the prosecutor's closing argument, he twice

referred to the defendants, African-Americans, as “bad

people”. The Court noted that “referring to defendants as ‘bad

people’ simply does not further the aims of justice or aid in the

search for truth, and is likely to inflame bias in the jury and to

result in a verdict based on something other than the

evidence.” Jd. at 1502.

In the instant case, the prosecutor's remark that

Defendant had “Hoodooed” her accountant raised the issue of

race, regardless of whether it was intended or predicted.

Moreover, the reference had no logical purpose or

justification. Therefore, the comments were unconstitutionally

impermissible.

Furthermore, the injection of race into the trial

undermined the jury’s impartiality. “Nothing is more

fundamental to the provision of a fair trial than the right of an

impartial jury. The impartiality of the jury must exist at the

outset of the trial and it must be preserved throughout the

entire trial.” Miller v. North Carolina, 583 F.2d 701, 706 (4°

Cir. 1978). Here, the government’s closing argument appealed

to the jury’s passions and prejudices by comparing Dr. Lewis

to a “Hoodoo” doctor.

Even if it was the government's attempt to

suggest to the jury that Dr. Lewis was misleading Mr. Golston

the same way that she misled William White, it should have

simply said as much. By referring to her conduct as

18

“Hoodooing”, the government unnecessarily injected race into

the proceeding. It is significant that this term historically has

been associated with black witchcraft and black medicine. It

is also significant that Dr. Lewis is an African-American and

that she is a medical doctor. These coincidences may appear

too strong to have been inadvertent, but even assuming that

they were, they unconstitutionally injected race into the jury's

deliberations.

For this reason, the jury verdict finding Dr.

Lewis guilty must be reversed. “The evils of racial prejudice

lurk too frequently throughout the administration of criminal

justice. They must be condemned whenever they appear.” The

Constitution forbids the racial remarks that were made in the

summation that preceded Dr. Lewis's conviction. Therefore,

she is entitled to a new, impartial trial.

Moreover, throughout the government's

closing. it improperly stated that the defendant lied when she

testified.

The Fourth Circuit has recognized that it is

highly improper for the government to refer to the defendant

as a “liar” or to express its opinion of the veracity of the

defendant. U.S. v. Moore, 11 F.3d 475, 481 (4” Cir. 1993).

The entire theme of the government's case was

that the Defendant “lied and cheated and cheated and lied.”

Throughout the government's summation, it accused her of

lying at every turn. It stated, “the evidence in this case

supports that on no less than 203 occasions, the defendant

deceived, misled, lied, falsified by oral or written statement

her communications to those people that needed to know the

truth. Her CPA needed to know the truth, the revenue agent

needed to know the truth, the IRS, in taking her tax returns,

needed to know the truth, the grand jury needed to know the

truth, but on no less than 203 occasions what they got was

something else.” This argument is improper not only because

it implies that the Defendant was a liar, but also because it

implies that she lied to the grand jury when in fact she did not

even testify before the grand jury.

19

The prosecutor further crossed the line of

demarcation and directly stated that Dr. Lewis lied to the jury.

It stated, “the defendant's testimony on this issue is totally

preposterous” and “the defendant has lied and misrepresented

things to Mr. White. She has lied to the IRS in filing tax

returns. She has lied to Mr. O’Neill. She has asked others to

iie to Mr. O'Neill. She has given false documents. She has

lied through the testimony, or attempted to encourage and

advise Ms. Ellen Teaford to lie to the grand jury, and she came

in here under oath and lied to you. There is no one else to lie

to.” (emphasis added).

The United States again expressed its opinion

of Dr. Lewis's credibility in its rebuttal argument. When

referring to Dr. Lewis's timing, the government stated, “If this

is a woman who has been done so wrong by such a bad

accountant and a bad guy. why did she wait until the last day

of the jury trial to tell that story? If that was a true story, why

wasn't she telling it? Well, Mr. Anderson tells you, Well, she

was represented by, you know, Bill White. He was somehow

manipulating her defense. Well, Mr. Anderson has been

representing her for a year and a half and he’s no slouch. If

that was a true story and there’s some merit to it, why hasn't it

been told?”

This argument is improper for several reasons.

First, it wrongly comments upon the Defendant's right to

remain silent at every stage of the proceeding. It penalizes the

Defendant's invocation of that right by permitting the

government to argue that because the testimony was not told

prior to the trial, it is tainted and unbelievable. The

government may argue that the Defendant “opened the door”

for this argument. However, regardless of whether the

Defendant “opened the door” to comments that Dr. Lewis told

her story for the first time at trial, she did not “open the door”

to argument that her credibility is suspect solely because she

previously invoked her right not to incriminate herself.

Furthermore, the government's comment that she waited until

20

“the last day of trial” was improper because the order of proof

in a criminal trial dictates when a defendant testifies. Does the

government suggest that she should have testified on the first

day of the government's case in chief?

Clearly, these arguments were wholly improper

as they directly accused the Defendant of lying to the jury, and

it is the function of the jury, not the prosecutor, to determine

who is telling the truth.

Finally, the government improperly infringed

upon the Defendant’s right to be presumed innocent. In the

opening summation, the United States argued, “we all

understand that the evidence does not support innocence on

any count. There is no suggestion that she is innocent of any.”

Later, it stated, “The defendant was in an indefensible

position. She had no defense.” These comments clearly

violated the Defendant's right to be presumed innocent,

because, of course, an accused need not present evidence of

her innocence, nor must she present a defense. It is only the

government that bears any burden of proof.

The only remaining question is whether these

remarks, taken as a whole, prejudiced the Defendant's

substantial rights so as to deprive her a fair trial. A number of

factors are considered in evaluating prejudice: the degree to

which the prosecutor's remarks have a tendency to mislead the

jury and to prejudice the accused; whether the remarks were

isolated or extensive; absent the remarks, the strength of

competent proof introduced to establish the guilt of the

accused; and, whether the comments were deliberately placed

before the jury to divert attention to extraneous matters. U.S.

v. Mitchell, 1 F.3d 235, 241 (4" Cir. 1993).

In this case, the credibility of Dr. Lewis was

crucial to her defense. She testified before the jury and

explained that she believed that many of the questioned tax

deductions were lawful and that she relied upon her

accountant, William White, to attend to her affairs. She

testified that she relied upon his advice at each stage of the

IRS audit. William White, on the other hand, testified that Dr.

21

Lewis instructed him as to which deductions to take and that

he gave her good advice that she chose to ignore. The

swearing contest that arose between Dr. Lewis and William

White became the central issue in the trial. Consequently, the

government's accusations that Dr. Lewis lied at trial clearly

prejudiced the accused. Moreover, the comments permeated

the government’s case. Its rallying cry, “lying and cheating

and cheating and lying” was central to its aim of discrediting

the credibility of Dr. Lewis in order to bolster the character of

its star witness, William White.

Finally, the comments were so pervasive that

they must have been deliberate. The government's entire

summation concentrated upon the mendacity of Dr. Lewis,

rather than the elements of the offenses.

Accordingly, the error amounts to plain error

and should be considered by this Court.

2. THE WRIT SHOULD BE GRANTED

BECAUSE THE FOURTH CIRCUIT'S

DECISION REGARDING WHICH

GUIDELINES BOOK TO USE

CONFLICTED WITH THE DECISIONS

OF OTHER CIRCUIT COURTS OF

APPEALS.

The dates of the offenses alleged in the

indictment straddle two versions of the Sentencing Guidelines.

When Count Five, filing a false tax return for tax year 1992,

was committed in April, 1993, the 1992 version of the

Guidelines was in effect.

The Guideline Amendments that took effect in

November, 1993, significantly increased the punishment for

the offenses, including Count Five. First, under Section

2T4.1, the offense levels in the tax table were increased for

amounts of loss. For example, under the 1992 version a loss

of more than $40,000.00 was an offense level eleven, a loss of

more than $20,000.00 was an offense level ten, and a loss of

22

more than $10,000.00 was an offense level nine. By contrast,

under the 1993 version, a loss of more than $40,000.00 was an

offense level thirteen, a loss of more than $23,500.00 was an

offense level 12, and a loss of more than $13,500.00 was an

offense level eleven.

Furthermore, under the 1992 version of the

Guideline, the tax loss was 28% of the amount by which the

gross income was under-reported. In the later version, the tax

loss is 28% of the unreported gross income “unless a more

accurate determination of the tax loss can be made.” In this

case, the Court accepted a Sum that was greater than 28% of

the unreported income. Thus, the application of the later

Guidelines version resulted in a harsher penalty.

The question of which Guidelines book applies

when offenses straddle Guidelines versions involves

application of the guidelines and principles of the

constitutional prohibition against Ex Post Facto laws.

As a general rule, a Defendant should be

sentenced under the Guidelines Manual in effect at the time of

sentencing. U.S.S.G. §1B1.11. However, if use of the manual

in effect at the time of sentencing would violate the Ex Post

Facto Clause, Art. 1, §9, Constitution of United States, then

the district court must use the manual in effect at the time of

the offense of conviction. U.S.S.G. §1B1.11; United States v.

Heater. 63 F.3d 311. 331 (4" Cir. 1995). Only one book can

be applied. It would always be against Guidelines dictate to

use one book for one offense and one book for another

offense.

Section 1B1.11(b)(3) provides that if the

defendant is convicted of two offenses, one committed before,

and the second after a revised edition became effective, the

revised edition applies to both offenses.

However, it is clear that if §1B1.11(b)(3)

would result in a violation of the Ex Post Facto Clause then it

cannot be implemented.

The Fourth Circuit recognized a split in_the

circuits in its decisio“1.

23

The Third and Ninth Circuits have determined

that the principle contained in §1B1.11(b)(3) does violate the

Ex Post Facto Clause when it results in the imposition of a

harsher penalty for the offenses committed prior to enactment

of the manual in effect at the time of sentencing. United States

v. Ortland, 109 F.3d539, 547 (9" Cir. 1997); United States v.

Bertoli, 40 F.3d 1384, 403 (3% Cir. 1994). At least the

Eleventh, Eighth, and First Circuits have ruled to the contrary.

United States v. Bailey, 123 F.3d 1381, 1403-07 (11" Cir.

1997); United States v. Cooper, 35 F.3d 1248, 1250-1253 (8"

Cir. 1994): United States v. Regan, 989 F.2d 44, 45 (1* Cir.

1993). In Lewis the Fourth Circuit followed these circuits.

The Bertoli and Ortland decisions are better

reasoned and should be made uniform in all the circuits. There

is nO question that application of the later manual to Count

Five results in increased punishment, and the Ex Post Fact>

Clause prohibits the application of more stringent penalties

than were authorized at the time of the offense. The fact that

the other Counts were committed later and the Sentencing

Commission demands the “one-book” rules does not obliterate

the Ex Post Facto violation. Thus, in order to reconcile Ex

Post Facto concerns and the “one-book rule” the Court must

apply the earlier more favorable manual. Bertoli, 40 F.3d at

1403-1404.

Therefore, the trial court’s use of the 1993

manual violated the Ex Post Facto Clause and Dr. Lewis’s

sentence must be reversed and remanded for a new sentencing

under the 1992 Manual. This Petition should be granted to

determine this issue.

3. THE WRIT SHOULD BE GRANTED

BECAUSE THE OPINION OF THE

COURT OF APPEALS CONFLICTS

WITH THIS COURT’S DECISION IN

APPRENDI V. NEW_ JERSEY, 530 US.

, 147 1..ED. 435 (2000)

24

The District Court below included in the tax loss

computation deductions taken in tax years not charged in the

indictment, 1994-1997. This increased the offense level and

the sentencing range of the Defendant under the United States

Sentencing Guidelines. Consequently, including in the

sentencing tax loss deductions made in those unindicted years

increased the Defendant's sentence in excess of the sentence

she would have received based solely upon the indictment and

convictions. Under Apprendi, this sentencing increase is

unconstitutional.

Apprendi holds that under the Due Process Clause of

the Fifth Amendment and the notice and jury trial guarantees

of the Sixth Amendment, any fact, other than a prior

conviction, that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt. Apprendi, 147 L. Ed

2d at 446. The reasoning in Apprendi leads inescapably to the

principle that under these constitutional provisions a

defendant's sentence cannot be increased based upon conduct

that has not been charged, submitted to the jury, and proven

beyond a reasonable doubt.

In Apprendi the Court explained that historically a

defendant's punishment was fixed by the conviction and

verdict itself, which were obtained only after the constitutional

guarantees of due process, notice, jury trial, and proof beyond

a reasonable doubt. Thus, the defendant had notice at the time

he committed a crime of the exact punishment he faced. It

developed that judges were given more discretion in

sentencing: however, the discretion was limited to imposing a

judgment within a range or limits fixed by law. "The historic

link between verdict and judgment and the consistent limits on

judges' discretion to operate within the limits of the legal

penalties provided highlight the novelty of a legislative

scheme that removes the jury from the determination of a fact

that, if found, exposes the criminal defendant to a penalty

exceeding the maximum he would receive if punished

according to the facts reflected in the jury verdict alone." Id.

at 450. The Court rejected such "legislative schemes" and

25

endorsed the rule that, "it is unconstitutional for a legislature to

remove from the jury the assessment of facts that increase the

prescribed range of penalties to which a criminal defendant is

exposed. It is equally clear that such facts must be established

by proof beyond a reasonable doubt." Id. at 455.

It follows that it is unconstitutional for a judge to

sentence a defendant for offenses for which he has never been

charged and which have never been submitted to a jury for a

reasonable doubt determination. It is true that the Defendant

was not sentenced to a term that exceeded the maximum term

for the offenses for which she was convicted. However, the

Defendant's range of punishment under the mandatory United

States Sentencing Guidelines was increased based upon facts

and offense conduct that were not indicted and not determined

by a jury beyond a reasonable doubt. There simply is no

Substantive difference between the range of punishment

mandated by a criminal statute and that mandated by the .

United States Sentencing Guidelines.

Furthermore, tax cases such as the one at bar are

unique in that generally a Defendant is provided the benefit of

a civil tax audit before any criminal investigation into alleged

fraudulent deductions. Thus, in a civil setting a Defendant is

provided an opportunity to contest the Service's

determinations or to concede to the Service's decision without

further investigation. In this case the Court included in the

Defendant's criminal tax loss deductions taken in years that

were neither a part of a civil tax audit or a criminal indictment.

Thus, this case falls within the holding of Apprendi,

because inclusion of the unindicted conduct increased the

Defendant's range of punishment. Such inclusion clearly

violated the Defendant's Fifth and Sixth Amendment rights to

due process and trial by jury and requires reversal of the

defendant's sentence.

26

CONCLUSION

For these reasons, Petitioner requests that his

Petition for Writ of Certiorari be granted and that the Fourth

Circuit Court of Appeals be reversed.

Respectfully submitted,

VERNA M. LEWIS

By

Counsel

Anthony F. Anderson, Esquire, VSB No. 21345

Melissa W. Friedman, Esquire, VSB No. 27277

1102 Second Street, S. W.

P. O. Box 1525

Roanoke, Virginia 24007

(540) 982-1525

Counsel for Appellant

APPENDIX

APPENDIX

UNITED STATES V. LEWIS,

F.3d 004016 (4" Cir. 2000)

United States v. Lewis Order on Petition for

Rehearing and Rehearing En Banc

Relevant Opinions of the United States

District Court

10

United States v. Lewis, __ F.3d ____ 004016 (4th Cir.

2000)

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

Vv

VERNA M. LEWIS, Defendant-Appellant.

No. 00-4016

Argued: September 29, 2000

Decided: December 19, 2000

Appeal from the United States District Court for the

Western District of Virginia, at Roanoke. Samuel G. Wilson,

Chief District Judge. (CR-98-57-R)

Before WILKINS and MOTZ, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed in part and vacated and remanded in part by

published opinion. Judge Wilkins wrote the opinion, in

which Judge Motz and Senior Judge Hamilton joined.

COUNSEL

ARGUED: Melissa Windham Friedman, Roanoke, Virginia,

for Appellant. Gregory Victor Davis, Tax Division, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C.,

for Appellee. ON BRIEF: Anthony F. Anderson, Roanoke,

Virginia, for Appellant. Paula M. Junghans, Acting Assistant

Attorney General, Robert E. [Slip Op. 2] Lindsay, Alan

Hechtkopf. Robert P. Crouch, Jr., United States Attorney,

Tax Division, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Appellee.

OPINION

WILKINS, Circuit Judge:

Verna M. Lewis was convicted of numerous charges

related to the filing of false income tax returns end now

appeals her convictions and the resulting sentence. Among

other things, Lewis maintains that application to her of the

1998 version of the U.S. Sentencing Guidelines Manual

violated the Ex Post Facto Clause and that the district court

improperly ordered her to pay restitution. We affirm Lewis'

convictions and the application of the guidelines, but vacate

the restitution order and remand for further proceedings

regarding that aspect of Lewis’ sentence. -

1.

Lewis is a physiatrist, a physician who specializes in

physical medicine and rehabilitation. In 1988, she was

recruited to work for the Lewis-Gale Hospital in Salem,

Virginia. As part of Lewis' employment package, the

Hospital guaranteed Lewis an income of at least $125,000

for the first year. In 1993, the Internal Revenue Service

(IRS) began an investigation of guaranteed-income

agreements at Virginia hospitals. When Lewis' tax returns

were reviewed as part of this investigation, IRS personnel

discovered improper deductions for Purported business

expenses that were actually personal in nature. In an effort to

conceal the improper deductions, Lewis presented falsified

documents to IRS investigators. Lewis also filed a false tax

return for the year 1992 and filed false amended tax returns

for the years 1990, 1991, and 1992.

Lewis was charged with, and convicted of, various

offenses in connection with these activities. She now

appeals, raising numerous challenges to her convictions and

sentence. We have carefully reviewed Lewis’ arguments

related to her convictions and determined them to [Slip Op.

3] be without merit. Accordingly. we will not discuss them

further. Some of Lewis' claims regarding her sentence,

however, do warrant discussion.

II.

Lewis makes three challenges concerning her sentence.

First, she contends that the district court violated the Ex Post

Facto Clause when it applied the 1998 Guidelines Manual in

calculating her sentence. Second, Lewis maintains that her

due process rights were violated when the district court

determined the tax loss, and hence the applicable guideline

range, by a preponderance of the evidence. Finally, she

argues that the restitution order entered by the district court

is plainly erroneous. We address these contentions seriatim.

A.

Lewis was convicted of four counts of filing false tax

returns. The first offense occurred on April 13, 1993, when

Lewis filed a false tax return for the year 1992. The other

three offenses occurred on December 10, 1993, when Lewis

filed false amended tax returns for the years 1990, 1991, and

1992. In the interim, on November 1, 1993, the sentencing

guidelines were amended so as to increase the base offense

level for filing a false tax return. Specifically, Amendment

491 amended the tax table in U.S.S.G. § 2T4.1 so that a tax

loss of more than $40,000 resulted in a base offense level of

13, rather than 11. See U.S.S.G. App. C, amend. 491 (1997).

The district court is to apply the Guidelines Manual in

effect at the time of sentencing unless doing so would violate

the Ex Post Facto Clause. See U.S.S.G. § 1B1.11(a), (b)(1),

p.s.: see also id. § 1B1.11, p.s., comment. (backg'd.) (noting

that “courts to date generally have held that the ex post facto

clause does apply to sentencing guideline amendments that

subject the defendant to increased punishment”). The

guidelines specifically instruct, however, that “[i]f the

defendant is convicted of two offenses, the first committed

before, and the second after, a revised edition of the

Guidelines Manual became effective, the revised edition of

the Guidelines Manual is to be applied to both offenses.” Jd.

§ 1B1.11(b)(3), p.s. Pursuant to § 1B1.11, the district court

applied the 1998 Guidelines Manual in determining Lewis'

[Slip Op. 4] sentence.’ Lewis maintains that because

application of the 1998 Guidelines Manual resulted in

increased punishment for the first incident of tax evasion, her

sentence violates the Ex Post Facto Clause.

The question of whether the Ex Post Facto Clause is

violated when a revised edition of the guidelines is applied to

offenses that predate and postdate the revision is one that has

divided the circuit courts of appeal. Compare United States

v. Vivit, 214 F.3d 908, 917-19 (7th Cir.) (holding that

application of revised Guidelines Manual to offenses that

occurred both before and after revision, but which were

grouped for sentencing purposes, did not violate Ex Post

Facto Clause), cert. denied, _U.S. _.» 1a) 3. Ce. 388

(2000), United States v. Kimler, 167 F.3d 889, 893-95 (5th

Cir. 1999) (same), United States v. Bailey, 123 F.3d 1381,

1406-07 (11th Cir. 1997) (same), United States v. Cooper, 35

F.3d 1248, 1250-52 (8th Cir. 1994) (same). cert. granted,

Judgment vacated, 514 U.S. 1094 (1995), opinion reinstated.

63 F.3d 761, 763 (8th Cir. 1995) (per curiam), and United

States v. Regan, 989 F.2d 44, 48 (1st Cir. 1993) (holding that

application of revised guidelines to offenses that occurred

both before and after revision did not violate Ex Post Facto

Clause), with United States v. Ortland, 109 F.3d 539, 545-47

(9th Cir. 1997) (holding that application of revised

Guidelines Manual to offenses that occurred both before and

after revision violated Ex Post Facto Clause), and United

States v. Bertoli, 40 F.3d 1384, 1402-04 (3d Cir. 1994)

(same).

The constitutional provision on which Lewis relies forbids

fie enactment of any “ex post facto Law.” U.S. Const. art. I,

§ 9, cl. 3. The Ex Post Facto Clause prohibits, inter alia, the

enactment of “any law which imposes a punishment for an

act which was not punishable at the time it was committed;

or imposes additional punishment to that then prescribed.”

Weaver v. Graham, 450 U.S. 24, 28 (1981) (internal

quotation marks omitted). Accordingly, a law violates the Ex

Post Facto Clause when it is retrospective —i.e., when it

applies to events predating its enactment — and it

disadvantages those to whom it applies. See Lynce v. Mathis,

519 U.S. 433, 441 (1997). The central concern of the ex post

facto prohibition is “the lack of fair notice and governmental

restraint when the legislature increases punishment beyond

what was prescribed when the crime was consummated.”

Miller (Slip Op. 5] v. Florida, 482 U.S. 423, 430 (1987)

(internal quotation marks omitted). The Clause seeks to

ensure “that legislative Acts give fair warning of their effect

and permit individuals to rely on their meaning until

explicitly changed,” and guards against “arbitrary and

potentially vindictive legislation.” Weaver, 450 U.S. at 28-

29.

We conclude that the-guidelines provision of which Lewis

complains, U.S.S.G. § 1B1.11(b)(3), does not violate the Ex

Post Facto Clause. Section 1B1.11(b)(3) was added to the

guidelines on November 1, 1993. Lewis therefore had ample

warning, when she committed the later acts of tax evasion,

that those acts would cause her sentence for the earlier crime

to be determined in accordance with the Guidelines Manual

applicable to the later offenses, and thus that the intervening

amendment to the tax table would apply. Accordingly, it was

not § 1B1.11(b)(3) that disadvantaged Lewis, but rather her

decision to commit further acts of tax evasion after the

effective date of the 1993 guidelines. See Cooper, 35 F.3d at

1250.

This court has consistently held that, while facts necessary

for conviction must be proved beyond a reasonable doubt in

order to satisfy the requirements of due process, facts

relevant to a sentencing determination need only be proved

by a preponderance of the evidence. See, e.g., United States

v. Urrego-Linares, 879 F.2d 1234, 1237-38 (4th Cir. 1989).

In her reply brief, however, Lewis argues that her sentence

was imposed in violation of the Due Process Clause because

the tax loss on which her guideline range was based was not

charged in the indictment and found by the jury beyond a

reasonable doubt.” In making this argument, Lewis relies on

the recent decision of the Supreme Court in Apprendi v. New

Jersey, 530 U.S.___ 99478, 120 S. Ct. 2348, 2362-63

(2000), in which the Court held that “any fact that increases

the penalty [Slip Op. 6] for a crime beyond the prescribed

Statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” °

Because Lewis did not raise this argument in the district

court, our review is for plain error only.* See Fed. R. Crim.

P. 52(b): United States v. Olano, 507 U.S. 725, 731-32

(1993): see also United States v. Meshack, 225 F.3d 556. 575

(Sth Cir. 2000) (noting that Apprendi claims would be

reviewed for plain error when no objection was raised before

the district court): cf United States v. David, 83 F.3d 638.

645 (4th Cir. 1996) (explaining that plain error review is

appropriate when “an objection at trial would have been

indefensible because of existing law, but a Supervening

decision prior to appeal reverses that well-settled law”). In

order to establish our authority to notice an error not

preserved by a timely objection, Lewis must show that an

error occurred, that the error was plain, and that the error

affected her substantial rights. See Olano, 507 U.S. at 732:

United States v. Cedelle, 89 F.3d 181, 184 (4th Cir. 1996).

Even if Lewis can satisfy these requirements, correction of

the error remains within our [Slip Op. 7] sound discretion,

which we “should not exercise . . . unless the error ‘seriously

affects] the fairness, integrity or public reputation of judicial

proceedings.’” Olano, 507 U.S. at 732 (second alteration in

original) (quoting United States v. Young, 470 U.S. 1, 15

(1985)); see David, 83 F.3d at 641.

We conclude that there was no error. The decision of the

Supreme Court in Apprendi was, by its terms, limited to facts

that increase punishment beyond the prescribed statutory

maximum. Here, because no fact found by the district court

in determining Lewis' sentence resulted in a penalty greater

than the applicable statutory maximum, Lewis' due process

rights were not violated. See Meshack, 225 F.3d at 576-77.

‘.

Lewis next challenges the restitution order entered by the

district court. Although the presentence report indicated that

restitution was not an issue, at the sentencing hearing the

district court imposed restitution of $105,651.69 as a special

condition of supervised release. This figure apparently was

provided to the court by the Government during the

sentencing hearing. The court did not make any factual

findings as to the proper amount of restitution or as to Lewis’

ability to pay. See 18 U.S.C.A. § 3556 (West 2000)

(providing that a court must comply with 18 U.S.C.A. §

3664 in ordering restitution as a condition of supervised

release): United States v. Castner, 50 F.3d 1267, 1277 (4th

Cir. 1995) (explaining that § 3664(a) requires a district court

to make explicit factual findings prior to entering an order of

restitution). Accordingly, we vacate this aspect of Lewis’

sentence and remand for further proceedings. [Slip Op. 8]

III.

In sum, we affirm Lewis' convictions and the application

of the sentencing guidelines. However, we vacate the order

of restitution and remand for further proceedings consistent

with this opinion.

AFFIRMED IN PART, VACATED AND

REMANDED IN PART.

FOOTNOTES

' The relevant guidelines have not been amended since 1993.

? Lewis also argues that the district court failed to make adequate factual

findings to support its calculation of the tax loss for sentencing purposes.

We conclude that the district court made a reasonable estimate of the loss

based upon the available facts. See U.S.S.G. § 2T1.1, comment. (n.1).

* Apprendi was decided after Lewis filed her opening brief, and she

raised her due process claim in her reply brief, the next available

opportunity. This court has held that “an issue first argued in a reply brief

is not properly before a court of appeals.” Cavallo v. Star Enter., 100

F.3d 1150. 1152 n.2 (4th Cir. 1996). There is some authority. however,

for the proposition that special circumstances may justify deviation from

this rule. See, e.g., United States v. Valdez, 195 F.3d 544, 546 n.3 (9th

Cir. 1999) (observing that court may exercise discretion to consider

argument raised in reply brief when issue is purely legal or review would

prevent manifest injustice); United States v. Darden, 70 F.3d 1507, 1549

n.18 (8th Cir. 1995) (stating that court would not consider issues raised in

reply brief “[a]bsent some reason” why the claims were not raised

earlier); cf United States v. All Assets & Equip. of West Side Bldg. Corp..

58 F.3d 1181. 1191 (7th Cir. 1995) (holding that issue was not waived

when raised at first opportunity); cf also Griffith v. Kentucky. 479 U.S.

314, 328 (1987) (holding that new rules of criminal procedure are

retroactively available to cases pending on direct review). Because the

claim is without merit in any event, we need not decide whether it was

properly raised.

* We note that in addressing a similar claim. United States v. Angle, 230

F.3d 113 (4th Cir. 2000). conducted harmless-error review, which is the

appropriate standard for issues first raised in the district court.

, Pointing to the Judgment and Commitment Order, which sets forth the

restitution amount elsewhere than in the section pertaining to conditions

of supervised release, Lewis argues that the district court improperly

imposed restitution as part of her sentence. Because we vacate the

restitution order for other reasons, we need not determine whether this

technical error would require remand in and of itself.

United States v. Lewis, ___ F.3d ___ 004016. 004016 (4th Cir. 2000)

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 00-4016

CR-98-57-R

UNITED STATES OF AMERICA

Plaintiff — Appellee

¥.

VERNA M. LEWIS

Defendant — Appellant

The appellant's petition for rehearing and rehearing

en banc was submitted to this Court. As no member of this

Court or the panel requested a poll on the petition for

rehearing and is of the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and

rehearing en banc is denied.

For the Court

/s/ Patricia S. Conner

Clerk

10

OPINIONS OF THE DISTRICT COURT

MS. FRIEDMAN: _ Well, Your Honor, I guess for

the record we need to state that we tendered two good-faith

defense instructions that were refused by the Court—

THE COURT: Right.

MS. FRIEDMAN: __ -- which I will give to the

clerk.

THE COURT: I did give a good-faith

instruction.

MS. FRIEDMAN: That's correct, we understand

that and I won't argue it any further other than to say that

those were our theory of defense instructions, and we don’t’

believe that the willfully instruction encompassed as much as

these do and that’s why we offered them. We believe it was

correct under the law.

THE COURT: And I| might state for the

record that I did not find that they were tailored

appropriately to this case for me to give them and that of

course that courts have indicated that when the Court has

appropriately instructed on the question of willfulness that it

is a discretionary call as to good faith, and the Court has

drafted one the Court believes to be—and has had the

participation of counsel in the drafting of that—thought to be

appropriate under the circumstances. The others are more

broadly worded and I think inappropriate, and that is the

reason that they have been denied.

* * *

1]

MS. FRIEDMAN: _ And our last objection, Your

Honor, is to the instruction given by the Court that when a

defendant voluntarily and intentionally offers an explanation

and then if it’s proven to fall under consciousness of guilt,

we don't believe that was supported by the evidence and it

was improperly commented on by the prosecution.

THE COURT: All right.

* ~ *

THE COURT: As to the split of authority

within the circuits as to what manual applies, the Court

follows the reasoning and therefore the case of United States

versus Bailey, 123 F.3d 1381, which holds that “application

of 1B1.11 (b) (3) did not violate the ex post facto clause even

thought it resulted in a position of a harsher sentence for the

offense committed prior to the enactment of the guidelines in

effect at the time of the sentence because a defendant knows

when he continues to commit related crimes that he risks

sentencing for all offenses under the latest amended

sentencing guideline manual.”

To the same effect is United States versus Cooper, 35

f 3d 1248, Eighth Circuit 1994. The court follows those and

therefore will apply, will follow the 1993 amendments,

which the Court views as no different from what is in effect

for 1998, and will apply that manual.