Opposition Brief — Mower v. United States (No. 07-1539)

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No. 07-1539

In the Supreme Court of the United States

LESLIE D. MOWER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

GREGORY G. GARRE

Acting Solicitor General

Counsel of Record

NATHAN J. HOCHMAN

Assistant Attorney General

ALAN HECHTKOPF

KAREN M. QUESNEL

ELISSA HART-MAHAN

Attorneys

Department of Justice

Washington, D.C. 20580-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the district court’s use of the 2001 Sen-

tencing Guidelines violated the Ex Post Facto Clause,

U.S. Const. Art. I, § 9, Cl. 3, when affirmative acts in

furtherance of each offense were committed after 2001.

2. Whether the district court abused its discretion

in admitting the goverament’s summary charts.

3. Whether the district court erred in holding that

the statute of limitations for petitioner’s tax evasion of-

fenses began to run after the last affirmative act of eva-

sion.

(I)

TABLE OF CONTENTS

Page

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SE EE ee Sa Cr Lenny Sy ree Sse ees 1

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os hana s ead ays wee eee este eee Oa Aedes 6

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TABLE OF AUTHORITIES

Cases:

Caider v. Bull, US. TRG CTS) won ccc cccccecccscesees 6

Gall v. United States, 128 S. Ct. 586 (2007) ............. 7

Irizarry v. United States, 128 S. Ct. 2198 (2008) ........ 8

Johnson v. United States:

ee I Fb soso. 5 4a ean nace a 00 0 Wok Vive niet 8

ee ei Ss ewww ie dedevae ue Cane 6

Kimbrough v. United States, 128 S. Ct. 558 (2007 Putuche els 7

Miller v. Florida, 482 U.S. 423 (1987) ...............6.. 6

Sansone v. United States, 380 U.S. 343 (1965) .......... 13

Spies v. United States, 317 U.S. 492 (1943) ............ 13

Steele v. United States, 222 F.2d 628 (5th Cir. 1955) .... 13

United States v. Anderson, 319 F.3d 1218 (10th Cir.

RR eh Oe ae ne eee Pe Ny eee 13

United States v. Aviles, 518 F.3d 1228 (11th Cir. 2008) ... 8

United States v. Bailey, 123 F.3d 1381 (11th Cir.

SU tera ete ly ae Dita ain eh a ee nee we oe eo 10

United States v. Beacon Brass Co., 344 U.S. 43

CR hc tee ca ade oa eee Ras ee ee 14, 15

United States v. Bertoli, 40 F.3d 1384 (3d Cir. 1994),

cert. denied, 517 U.S. 1137 (1996) .............000.. 10

(IIT)

Cases—Continued: Page

United States v. Booker, 543 U.S. 220 (2005) .......... 7,8

United States v. Butler, 297 F.3d 505 (6th Cir. 2002),

cert. denied 538 U.S. 1032 (2008) ..............006- 13

United States v. Citron, 783 F.2d 307 (2d Cir. 1986)..... 13

United States v. Cooper, 63 F.3d 761 (8th Cir. 1995),

cert. denied, 517 U.S. 1158 (1996) .................-. 10

United States v. Dandy, 998 F.2d 1344 (6th Cir. 1998),

cert. denied, 510 U.S. 1163 (1994) ......... cc ccccees 14

United States v. Demaree, 459 F.3d 791 (7th Cir.

2006), cert denied, 127 S. Ct. 3055 (2007) ............. 7

United States v. DeTar, 832 F.2d 1110 (9th Cir.

EE ao el oe ie en ants On cae aan we kes 14, 16

United States v. DiPetto, 936 F.2d 96 (2d Cir. 1991) . 14,15

United States v. Ferris, 807 F.2d 269 (1st Cir. 1986),

cert. denied, 480 U.S. 950 (1987) ...............000. 14

United States v. Firment, 296 F.3d 118 (2d Cir. 2002) .... 8

United States v. Hunerlach, 197 F.3d 1059 (11th Cir.

SL rs 5 hy eo ois ate ae Oe ke oO ee eae 14

United States v. Kilkenny, 493 U.S. F.d 122 (2d Cir.

RA aie gear hee tacnipe Pere Rreanes Harn Seer ae 7

United States v. McGill, 964 F.2d 222 (8d Cir.), cert.

Genied, S06 U.S. TOG8 CGR). wn oc ccc ccesvccaces 16

United States v. Means, 695 F.2d 811 (5th Cir. 1983) ... 12

United States v. Milkiewicz, 470 F.3d 390 (1st Cir.

Teen Mg ee ee ee ete a GUS ee xy 4 12

United States v. Ortland, 109 F.3d 539 (9th Cir.), cert.

ce a RE | E ¢ 10

United States v. Pollen, 978 F.2d 78 (3d Cir. 1992),

cert. denied, 508 U.S. 906 (1998) ..........0......... 16

Cases—Continued: Page

United States v. Seacott, 15 F.3d 1380 (7th Cir. 1994) ....6

United States v. Shorter, 54 F.3d 1248 (7th Cir.), cert.

Gemied, FIG U.S. SOG CGSB) ow wc cece ccc ee ecees 8

United States v. Smith, 46 F.3d 1223 (1st Cir. 1995),

cert. denied, 516 US. $64 (1995) «.... 0. cece c eevee 8

United States v. Stanberry, 963 F.2d 1323 (10th Cir.

SARS Dhar, Miner toes ARUP IR aa Dan ap eel a = ee, 9

United States v. Wilson, 118 F.3d 228 (4th Cir. 1997) ... 14

United States v. Wood, 486 F.3d 781 (3d Cir.), cert.

Co LE a: a 7

Constitution, statutes, rules and guidelines:

U.S. Const. Art. I, § 9, Cl. 3 (Ex Post Facto) ............ 6

ERE a er er eee 1, 3, 4

ES ae Be ree ce 1,3, 13

i ok eins 5 gave Kd doled ees ko oa eS 4

Fed. R. Evid.:

aca ds pee ak ed ohn dae eee 12

Ee ES | eee anaphase 8

United States Sentencing Guidelines:

EE re 11

ee ee 11

§ 1B1.3, comment. (n.9(B)) (2001) .................. 11

RAE TEES a eh a E 9

§ 1B1.11(b)(3) ....... Bee ah hcg Aria iace a aie hs arsed ace Re i)

a 11

$2 T1.1, comment. (n.2Z) (2001) ........ 0. ccc ccc eees 11

IIE RE Re a ee

Guidelines—Continued: Page

Ne du bb anea eae 11

§ 5G1.3(b), comment. (n.2) (2001) ...........-..00e- 11

In the Supreme Court of the Gnited States

No. 07-1539

LESLIE D. MOWER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-82)

is reported at 518 F.3d 832.

JURISDICTION

The judgment of the court of appeals was entered on

March 12, 2008. The petition for a writ of certiorari was

filed on June 7, 2008. The jurisdiction of this Court is

invoked under 28 U.S C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the District of Utah, petitioner was convicted

of one count of conspiracy to defraud the United States,

in violation of 18 U.S.C. 371, and six counts of tax eva-

sion, in violation of 26 U.S.C. 7201, for the tax years

1992 through 1997. The district court sentenced peti-

(1)

2

tioner to 27 months of imprisonment, to be followed by

three years of supervised release. The court of appeals

affirmed. Pet. App. 1-82.

1. Petitioner and her husband, Thomas Mower,

owned corporations in the United States (Neways US),

Australia (Neways Australia), and Malaysia (Neways

Malaysia) that used a multilevel marketing system to

sell personal care products. Pet. App. 4. The corpora-

tions sold their products to distributors, who then re-

cruited other distributors to sell the products to the

public. Jd. at 4-5. Petitioner primarily dealt with the

corporations’ distributors, although she also made deci-

sions “on a daily basis for Neways US” and served as

Chief Financial Officer of Neways US during the mid-

1990s. Jd. at 5. The Mowers created a number of enti-

ties as a way to transfer income from the corporations to

bank accounts they controlled; those entities never filed

corporate tax returns and never paid federal taxes. Jd.

at 7-9, 23-24. All three corporations regularly issued

commission checks to those entities, and the commission

checks were ultimately deposited into accounts con-

trolled by petitioner and her husband. /d. at 6-9. Peti-

tioner and her husband used some of the proceeds from

commission checks to purchase a $650,000 property,

called Hobble Creek, in 1993 or 1994. Jd. at 10-11.

In 1997, an IRS agent began investigating the Mow-

ers’ finances. Pet. App. 12. In order to conceal the fact

that the Mowers had used unreported commission in-

come to purchase the Hobble Creek property, James

Thompson, Neways US’s attorney, created a backdated

loan document that purported to show that the $650,000

had been a loan from Neways Australia. /d. at 13. Peti-

tioner’s husband, who signed the loan document, pro-

vided it to the IRS as proof of the loan. /d. at 13-14.

3

Neither petitioner’s husband nor petitioner (who knew

about .the loan document and was kept apprised of the

situation), however, ever informed the agent that the

document had been created after the fact and back-

dated. Jd. at 14. The IRS agent traveled to Australia to

investigate the payments from Neways Australia to the

Mowers; he found no evidence that a loan had been

made. /bid. An attorney for Neways US told the agent

that Neways Australia had not properly documented the

loan and that Neways US planned to file amended cor-

porate tax returns to reflect the funds received. /bid.

When an accountant from Neways US learned that

the funds received were not a loan, she thought that the

Mowers should amend their individual income tax re-

turns to show the commission checks as an additional

$876,324 in income to the Mowers. Pet. App. 19. An out-

side accounting firm ultimately prepared amended indi-

vidual returns, showing that the Mowers owed over

$300,000 in taxes, penalties, and interest for the 1994,

1995, and 1996 tax years. /bid. Petitioner and her hus-

band never filed the amended individual returns. /d. at

20. Instead, in 1998, they filed amended corporate re-

turns showing approximately $500,000 in additional cor-

porate income for the 1994 and 1995 tax years. /bid.

Petitioner also filed another amended corporate return

on January 11, 2002. Gov’t C.A. Br. 70.

2. On December 19, 2002, petitioner and her hus-

band were indicted on one count of conspiracy to de-

fraud the United States, in violation of 18 U.S.C. 371,

and six counts of tax evasion, in violation of 26 U.S.C.

7201. Pet. App. 4.’

' On April 8, 2003, a superseding indictment added James Thompson

as a third co-defendant and charged him with conspiracy to defraud the

4

Before trial, petitioner argued that four of the tax

evasion counts—for tax years 1992, 1993, 1994, and 1995

—were barred by the six-year statute of limitations.

Pet. App. 43-44. The district court rejected that argu-

ment, determining that petitioner had continued her

evasive conduct into 1998 and that the statute of limita-

tions did not begin to run until the date of the last eva-

sive act. Jd. at 44-45.

During trial, petitioner objected to the government’s

presentation of summary charts that reflected peti-

tioner’s and her husband’s actual income and expenses

based on the evidence admitted at trial. Pet. App. 48-50.

The district court admitted the summary charts, but

instructed the jury that the charts themselves were not

evidence and that the jury could disregard the charts if

it found them to be inaccurate. /d. at 51.

On March 18, 2005, following a 10-day jury trial, peti-

tioner was convicted on all counts. Pet. App. 27; Gov’t

C.A. Br. 3.

3. At sentencing, the district court found that overt

acts were committed after 2001. Pet. App. 28. Accord-

ingly, the court used the 2001 version of the Sentencing

Guidelines to calculate the advisory Guidelines range.

Ibid. Petitioner did not argue at sentencing that the use

of the 2001 Guidelines violated ex post facto principles.

Id. at 76. The court sentenced petitioner to 27 months

of imprisonment, which was the minimum of the advi-

sory Guidelines range. /d. at 28.

United States, in violation of 18 U.S.C. 371, and corruptly endeavoring

to interfere with the administration of the internal revenue laws, in vio-

lation of 26 U.S.C. 7212(a). Pet. App. 4. Thompson filed a petition for

a writ of certiorari on June 5, 2008 (No. 07-11311), and the government

waived its right to respond.

5

4. The court of appeals affirmed. Pet. App. 1-82.

The court of appeals rejected petitioner’s argument

that the statute of limitations barred four of the tax eva-

sion counts. Pet. App. 44-47. It agreed with the district

court that the statute of limitations did not begin to run

until petitioner had completed the last affirmative act of

evasion. Jd. at 44. Because petitioner filed a false

amended corporate return on January 6, 1998, and be-

cause that constituted an act of evasion occurring within

six years of the indictment, the court held that all the

tax evasion counts fell within the statute of limitations.

Id. at 45-46.

The court of appeals also rejected petitioner’s con-

tention that the district court abused its discretion in

admitting the summary charts. Pet. App. 49. The court

noted that the government’s evidence was “incredibly

voluminous;” that each item listed in the summaries cor-

responded to at least one piece of evidence; that peti-

tioner thoroughly cross-examined the IRS agent who

presented the summaries; and that the district court

gave an instruction cautioning the jury that the charts

were not evidence and that the jury could disregard

them. /d. at 50-51.

Finally, applying plain-error review, the court of ap-

peals held that the district court’s use of the 2001 Guide-

lines did not violate the Ex Post Facto Clause. Pet. App.

77-78. It agreed with the district court that “the evi-

dence showed overt acts (for conspiracy) and affirmative

acts of evasion (for the six counts of tax evasion) that

occurred after 2001.” Jd. at 77. Given that all the of-

fenses continued after the date on which the 2001 Guide-

6

lines became effective, the court reasoned, there was no

ex post facto violation. /d. at 77-78.°

ARGUMENT

1. Petitioner first asserts (Pet. 14-26) that the dis-

trict court’s use of the 2001 Guidelines violated the Ex

Post Facto Clause and that the court of appeals’ decision

to the contrary conflicts with decisions of the Third and

Ninth Circuits. The court of appeals’ decision is correct

and does not conflict with any decision of this Court or

of another court of appeals. In any event, petitioner’s

approach would not alter her ultimate sentence. Accord-

ingly, further review is not warranted.

a. The Ex Post Facto Clause, U.S. Const. Art. I, § 9,

Cl. 3, “bars application of a law ‘that changes the punish-

ment, and inflicts a greater punishment, than the law

annexed to the crime, when committed.’” Johnson v.

United States, 529 U.S. 694, 699 (2000) (quoting Calder

v. Bull, 3 U.S. 386, 390 (1798)). In Miller v. Florida, 482

U.S. 423 (1987), this Court inter reted the Ex Post

Facto Clause to bar the retroactive application of a re-

vised version of state sentencing guidelines that in-

creased a defendant’s presumptive sentencing range.

When the federal Sentencing Guidelines were consid-

ered mandatory, the courts of appeals uniformly had

applied this Court’s holding in Miller to the Guidelines.

See, e.g., United States v. Seacott, 15 F.3d 1380, 1386

(7th Cir. 1994) (“We thus join all of our sister circuits in

holding that a guideline amendment which occurs after

* The court of appeals also rejected petitioner's claims (not raised

here) that the evidence was insufficient to convict her of all counts, that

the district court erred in not giving certain jury instructions, that the

district court erred in denying her motion for severance, and that her

sentence was unreasonable. Pet. App. 3-4.

7

the commission of the defendant’s crime which works to

the defendant’s detriment is inapplicable because it is a

violation of the Ex Post Facto Clause.”).

In United States v. Booker, 543 U.S. 220 (2005), this

Court invalidated mandatory Guidelines and rendered

the Guidelines effectively advisory. In the wake of

Booker, the government articulated the view that the

Guidelines continued to play a pivotal role in constrain-

ing district-court sentencing discretion and in channel-

ing appellate review. Reasoning from that premise, the

government took the position that the Ex Post Facto

Clause applied to advisory Guidelines. Several courts of

appeals have expressed, with little analysis, the view

that the Ex Post Facto Clause continues to apply to ad-

visory Guidelines. See United States v. Kilkenny, 493

F.3d 122, 126-127 (2d Cir. 2007); United States v. Wood,

486 F.3d 781, 790 (3d Cir.), cert. denied, 128 S. Ct. 130

(2007). The Seventh Circuit reached a different result,

however. See United States v. Demaree, 459 F.3d 791

(7th Cir. 2006) (holding that the Ex Post Facto Clause

did not bar application of a post-offense amendment that

increased the advisory Guidelines range), cert. denied,

127 S. Ct. 3055 (2007). And more recent decisions of this

Court, clarifying the operation of the advisory Guide-

lines and rejecting several of the foundational premises

of the government’s analysis, have led the government

to reconsider its position. See Kimbrough v. United

States, 128 S. Ct. 558, 564, 570 (2007) (holding that a

sentencing court may consider the disparity in the Guide-

lines’ treatment of crack and powder cocaine offenses as

a basis for varying from the Guidelines range); Gall v.

United States, 128 S. Ct. 586, 594-597 (2007) (stating

that district courts “may not presume that the Guide-

lines range is reasonable”; rejecting application of “a

8

heightened standard of review to sentences outside the

Guidelines range”; and stating that the “rule requiring

‘proportional’ justifications for departures from the

Guidelines range is not consistent with our remedial

opinion” in Booker) (quoting Booker, 543 U.S. 220);

Irizarry v. United States, 128 S. Ct. 2198, 2202 (2008)

(holding that Fed. R. Crim. P. 32(h) does not require

district courts to give notice before varying from the

Guidelines range based on a previously unidentified fac-

tor because, “[nJow faced with advisory Guidelines, nei-

ther the Government nor the defendant may place the

same degree of reliance on the type of ‘expectancy’ that

gave rise to a special! need for notice”). In light of those

decisions, the government’s view is that the Ex Post

Facto Clause does not apply to changes in advisory

Guidelines.

b. Even if the Ex Post Facto Clause still applied, it

was not violated in this case. As an initial matter, be-

cause petitioner failed to preserve her ex post facto

claim in the district court, the court of appeals reviewed

it only for plain error. Pet. App. 76. Petitioner there-

fore could prevail only if error was “obvious.” Johnson

v. United States, 520 U.S. 461, 467 (1997).

The courts of appeals uniformly have held that the

Ex Post Facto Clause does not bar the application of a

revised version of the Guidelines to a conspiracy offense

that began before the revision but continued after the

revision’s effective date. See, e.g., United States v.

Aviles, 518 F.3d 1228, 1230-1231 (11th Cir. 2008); United

States v. Firment, 296 F.3d 118, 120-121 (2d Cir. 2002);

United States v. Smith, 46 F.3d 1223, 1239 (1st Cir.),

cert. denied, 516 U.S. 864 (1995); United States v.

Shorter, 54 F.3d 1248 (7th Cir.), cert. denied, 516 U.S.

896 (1995); United States v. Stanberry, 963 F.2d 1323,

9

1327 (10th Cir. 1992). Here, petitioner was convicted of

one count of conspiracy to defraud the United States

and six counts of tax evasion for tax years 1992 to 1997,

and she was sentenced under the 2001 Guidelines. The

district court found, and the court of appeals agreed,

that petitioner committed overt acts in furtherance of

the conspiracy and affirmative acts of evasion after 2001.

Pet. App. 77. None of her offenses was completed be-

fore the effective date of the 2001 Guidelines, and thus

there was no retroactive application of those Guidelines.

Ibid. (“all of her offenses continued after the date on

which the 2001 Guidelines became effective”). Accord-

ingly, the court of appeals correctly held that the use of

the 2001 Guidelines did not violate the Ex Post Facto

Clause. Id. at 77-78.°

Petitioner argues (Pet. 18-22) that the circuits dis-

agree whether a sentencing court violates the Ex Post

Facto Clause when it applies a revised version of the

Guidelines to all the offenses, some of which were com-

pleted before and some of which were completed after

the revision.* Although petitioner appears correct that

* The court of appeals noted that the district court committed a pro-

cedural error when it used the 2001 version of the Guidelines but relied

on the tax table, Guidelines § 2T4.1, from the 2005 Guidelines. Pet.

App. 72. Although the district court’s use of two different versions of

the Guidelines violated the rule requiring the use of a single version of

the Guidelines manual (see note 4, infra), the court of appeals correctly

held that any error was harmless, because “the sentencing table in both

sets of Guidelines is the same with regard to [petitioner].” /bid.

* See Guidelines §§ 1B1.11(b)(2) (sentencing court must apply the

appropriate Guidelines Manual “in its entirety”), 1B1.11(b)(3) (“If the

defendant is convicted of two offenses, the first committed before, and

the second after, a revised edition of the Guidelines Manual became ef-

fective, the revised edition of the Guidelines Manual is to be applied to

both offenses.”).

10

some conflict exists on that question,’ that question is

not implicated here. This is not a case where some of-

fenses were completed before and some after the effec-

tive date of the Guidelines used during sentencing. Ra-

ther, as discussed above, “all of [petitioner’s] offens-

es”—the conspiracy count and the six counts of tax

evasion—“continued after the date on which the 2001

Guidelines became effective.” Pet. App. 77 (emphasis

added). Therefore, the alleged circuit conflict does not

bear on petitioner’s sentencing.

In any event, even if any doubt remained as to the

applicability of the 2001 Guidelines to the earlier tax

evasion counts, there is no reason to believe that would

benefit petitioner, because those Guidelines undoubtedly

properly governed at least the conspiracy count (see

p. 8, supra). Petitioner’s base offense level (enhanced

by two for sophisticated means) was based on the total

tax loss (calculated to be $89,112), giving rise to a Guide-

lines range of 27-33 months. Pet. App. 28. She was sen-

tenced concurrently on all counts to the minimum of that

range. /bid. That total tax loss, and thus the base of-

fense level and minimum Guidelines range, would be the

same for the conspiracy count regardless of which ver-

sion of the Guidelines applied to the tax evasion counts.

That is because the base offense level for conspiracy in

cases such as this is based on the total tax loss from the

conspiracy as well as the tax loss from all relevant con-

* Compare United States v. Ortland, 109 F.3d 539, 545-546 (9th Cir.)

(ex post facto violation), cert. denied, 522 U.S. 851 (1997); United States

v. Bertoli, 40 F.3d 1384, 1403 (3d Cir. 1994) (same), cert. denied, 517

U.S. 1137 (1996), with United States v. Bailey, 123 F.3d 1381, 1404-1406

(11th Cir. 1997) (no violation); l’/nited States v. Cooper, 63 F.3d 761, 762

(8th Cir. 1995) (same), cert. denied, 517 U.S. 1158 (1996).

11

duct (including other related tax crimes).° Accordingly,

petitioner cannot establish, as is her burden in plain-

error review, that her total sentence would change.

2. Petitioner next argues (Pet. 27-40) that the dis-

trict court abused its discretion in admitting the sum-

mary charts and that the standard governing such ad-

missions needs clarification. The decision of the court of

appeals in this case does not conflict with any decision of

this Court or of another court of appeals, and the

factbound question whether the district court abused its

discretion in this case does not warrant this Court’s re-

view.

Federal Rule of Evidence 1006 provides that “(t]he

contents of voluminous writings * * * which cannot

conveniently be examined in court may be presented in

the form of a chart, summary, or calculation.” The Fed-

eral Rules of Evidence also provide that “The [district]

court shall exercise reasonable control over the mode

and order of interrogating witnesses and presenting

evidence so as to (1) make the interrogation and presen-

tation effective for the ascertainment of the truth, [and]

® See Guidelines §§ 2T1.1(a)(1) (2001) (tax loss amount determines

base offense level), 1B1.3(a) (2001) (base offense level calculations

should include al! relevant conduct). In criminal tax cases, relevant .

conduct includes tax loss from other related tax crimes. See id. § 2T1.1,

comment. (n.2) (2001) (“In determining the total tax loss attributable to

the offense (see id. § 1B1.3(a)(2)), all conduct violating the tax laws

should be considered as part of the same course of conduct or common

scheme or plan unless the evidence demonstrates that the conduct is

clearly unrelated.”); see also id. § 1B1.3, comment. (n.9(B)) (2001) (“[A]

defendant’s failure to file tax returns in three consecutive years appro-

priately would be considered as part of the same course of conduct.”).

Moreover, the Guide!'nes contemplate that relevant conduct may in-

clude a crime for which a defendant has been convicted and has re-

ceived a separate sentence. See id. § 5G1.3(b) & comment. (n.2) (2001).

12

(2) avoid needless consumption of time.” Fed. R. Evid.

611(a). And petitioner acknowledges (Pet. 27) that the

district court’s decision “whether to allow the use of

summary charts lies within the district court’s discre-

tion.”

In this case, the evidence presented at trial included

hundreds of commission checks and wire transfer re-

ceipts. Gov’t C.A. Br. 44. That evidence was highly rel-

evant, as the indictment alleged that those checks and

wire transfers constituted the income that the defen-

dants failed to report to the IRS and on which they at-

tempted to evade tax. The court of appeals found that

the evidence was “incredibly voluminous” and that “it

would have been incomprehensible to the jury without

summarization.” Pet. App. 50. As the court of appeals

noted, “{eJach item listed on the summaries was sup-

ported by at least one piece of evidence, such as a check,

deposit slip, bank record, or wire transfer receipt.”

Ibid. The IRS agent who presented the summaries as-

sumed that the items listed constituted income to the

Mowers, but that assumption was explained to the jury.

Ibid. Petitioner had ample opportunity to cross-examine

the IRS agent, and the district court specifically in-

structed the jury that the summary charts themselves

were not evidence and that the jury was free to disre-

gard the summaries. /d. at 51.

None of the cases cited by petitioner (Pet. 27-40) con-

flicts with the reasoning of the court of appeals in this

case. See, e.g., United States v. Milkiewicz, 470 F.3d

390, 398-399 (1st Cir. 2006) (finding no abuse of discre-

tion when jury clearly understood assumptions underly-

ing summary charts, defendant thoroughly cross-exam-

ined agent who compiled the summaries, and district

court gave limiting instruction); United States v. Means,

13

695 F.2d 811, 817 (5th Cir. 1983) (upholding the admis-

sion of summary charts when assumptions underlying

summary were based on the evidence and clearly ex-

plained to the jury). And the cases that petitioner cites

in which courts have reversed on the basis of improperly

admitted summary charts are clearly distinguishable.

See, e.g., United States v. Citron, 783 F.2d 307, 316-317

(2d Cir. 1986) (holding that admission of summary chart

was abuse of discretion when there was no foundation

laid for the figures in the summary and no explanation

of the calculations underlying the summary); Steele v.

United States, 222 F.2d 628, 629 (5th Cir. 1955) (revers-

ing based on admission of summary chart when there

were significant “omissions, interpretations and discrep-

ancies between the record and these exhibits and a con-

siderable portion of the testimony”).

3. Petitioner asserts (Pet. 40-53) that four of the tax

evasion counts were barred by the statute of limitations

and that the circuits are divided on the question of when

the statute of limitations begins to run in tax evasion

eases. The court of appeals’ decision is correct, and

there is no such division among the circuits. The issue

therefore does not warrant further review.

The statute of limitations for tax evasion is six years.

26 U.S.C. 6531. The elements of tax evasion are the ex-

istence of a substantial tax deficiency, an affirmative act

constituting an evasion or attempted evasion of tax, and

willfulness. 26 U.S.C. 7201; see, e.g., Sansone v. United

States, 380 U.S. 343, 351 (1965); Spies v. United States,

317 U.S. 492, 498-499 (1943). The general rule is that

the statute of limitations for attempted tax evasion be-

gins to run on the date the last affirmative act of evasion

occurred. See, e.g., United States v. Anderson, 319 F.3d

1218, 1219 (10th Cir. 2003); United States v. Butler, 297

14

F.3d 505, 511 (6th Cir. 2002), cert. denied 538 U.S. 1032

(2003); United States v. Hunerlach, 197 F.3d 1059, 1065

(11th Cir. 1999); United States v. Wilson, 118 F.3d 228,

236 (4th Cir. 1997); United States v. DiPetto, 936 F.2d

96, 97-98 (2d Cir. 1991); United States v. DeTar, 832

F.2d 1110, 1113 (9th Cir. 1987); United States v. Ferris,

807 F.2d 269, 271-272 (1st Cir. 1986), cert. denied, 480

U.S. 950 (1987). As the court of appeals in this case rec-

ognized, “to hold otherwise would only reward a defen-

dant for successfully evading discovery of his tax fraud

for a period of six years subsequent to the date the re-

turns were filed.” Pet. App. 45 (quoting United States

v. Dandy, 998 F.2d 1344, 1355 (6th Cir. 1993), cert. de-

nied, 510 U.S. 1163 (1994)).

This Court’s decision in United States v. Beacon

Brass Co., 344 U.S. 48, 46 (1952), supports the rule that

the statute of limitations does not begin to run until the

last affirmative act of evasion has taken place. In that

case, defendants were charged with attempting to evade

tax by making false statements to Treasury representa-

tives. They had filed a fraudulent corporate income tax

return in January 1945 and then, ten months later, made

a false oral statement to the IRS about the return. /d.

at 44. On September 14, 1951, the grand jury returned

an indictment charging the defendants with one count of

“willfully and knowingly attempt[ing] to defeat and

evade a large part of the taxes due and owing * * * by

making certain false and fraudulent statements and rep-

resentations, at a hearing and conference” with IRS em-

ployees on or about October 24, 1945. Jd. at 44-45. Al-

though this court declined to consider whether “the acts

charged constitute only one crime of tax evasion which

was complete when the allegedly false tax return was

filed,” 7d. at 46-47, this Court held that “[tjhe six-year

15

limitation period * * * had expired on a charge for

filing a false tax return in January 1945, but it had not

expired on a charge of making falz statements to Trea-

sury employees in October 1945.” Jd. at 44. This Court

thus has recognized that evasive acts after the filing of

a return may constitute attempts to evade tax.

Here, the district court properly found, and the court

of appeals agreed, that petitioner’s filing of false

amended corporate returns in 1998 was an affirmative

act of evasion designed to conceal unreported income

that petitioner had reveived in prior years. Petitioner

does not appear to contest that factbound determination

before this Court, nor would such a dispute warrant this

Court’s review. Because that act of evasion (relevant to

all the tax-evasion counts for the pre-1996 tax years)

occurred within six years of the 2002 indictment, none of

those counts was barred by the statute of limitations.

Pet. App. 44-47.

Petitioner argues (Pet. 48-49) that there is a division

among the circuits regarding whether tax evasion is a

“continuing offense.” But the issue here is when the

statute of limitations begins to run, not whether tax eva-

sion is a continuing offense. See Pet. App. 47 & n.13

(“the ‘continuing offense’ doctrine is irrelevant here”).

In any event, the Second and the Ninth Circuits—two of

the circuits that petitioner claims have adopted rules

that conflict with the court of appeals’ holding in this

case—have held that the statute of limitations begins to

run after the last affirmative act of evasion. See

DiPetto, 936 F.2d at 98 (“{W]e are in accord with several

other courts which have held that a section 7201 prose-

cution involving the failure to file income taxes is timely

if commenced within six years of the day of the last act

of evasion, whether it is the failure to file a return or

16

some other act in furtherance of the crime.”); DeTar,

832 F.2d at 1113 (“Even if the taxes evaded were due

and payable more than six years before the return of the

indictment, the indictment is timely so long as it is re-

turned within six years of an affirmative act of eva-

sion.”). The Third Circuit cases that petitioner relies

upon do not even address the statute of limitations in tax

evasion cases. See United States v. Pollen, 978 F.2d 78,

86-87 (8d Cir. 1992), cert. denied, 508 U.S. 906 (1993)

(holding that indictment charging multiple counts of tax

evasion was not multiplicitous for double jeopardy pur-

poses); United States v. McGill, 964 F.2d 222, 233-235

(8d Cir.) (reversing tax evasion convictions because

there was insufficient evidence of affirmative acts of

evasion), cert. denied, 506 U.S. 1023 (1992).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

GREGORY G. GARRE

Acting Solicitor General

NATHAN J. HOCHMAN

Assistant Attorney General

ALAN HECHTKOPF

KAREN M. QUESNEL

ELISSA HART-MAHAN

Attorneys

SEPTEMBER 2008