US v. Dorothy Anderson

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 3:11-cr-00837-JFA-1 Copies to all parties and the district court/agency. [999146497].. [12-4433]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4433

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DOROTHY LEE ANDERSON,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:11-cr-00837-JFA-1)

Argued:

May 17, 2013

Decided:

July 10, 2013

Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.

Affirmed by unpublished opinion.
majority opinion, in which Judge
wrote a dissenting opinion.

Judge Wilkinson wrote the
Duncan joined.
Judge Wynn

ARGUED: Jonathan McKey Milling, MILLING LAW FIRM, LLC, Columbia,
South Carolina, for Appellant.
Jamie L. Schoen, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
ON BRIEF: William N. Nettles, United States Attorney, Winston D.
Holliday, Jr., Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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WILKINSON, Circuit Judge:
Defendant
counts

of

Dorothy

various

fraudulently

obtain

Lee

Anderson

crimes

for

federal

income

was

using

convicted
stolen

tax

of

twenty

identities

refunds.

to

Anderson

now

challenges the jury’s guilty verdict on four of those counts, as
well

as

the

district

court’s

application

of

two

sentencing

enhancements. However, finding sufficient evidence to support the
convictions and concluding that the district court did not err
in applying either of the enhancements, we affirm.

I.
In

late

preparation
Service.”

2007,

Anderson

business

under

She

applied

to

took

steps

to

the

name

of

the

IRS

establish
“DL

for

a

tax

Anderson

Tax

authorization

to

electronically file tax returns and was issued an Electronic
Filing Identification Number (“EFIN”) for her business and a
Preparer’s Tax Identification Number (“PTIN”) for herself as a
paid tax preparer. Anderson used the EFIN and PTIN throughout
2008 to submit returns for the 2007 tax year.
In February 2009, the IRS interviewed Anderson as part of
an

investigation

into

certain

returns

filed

by

her

business

putatively on behalf of paid clients. Each return in question
indicated that the refund due was to be deposited into one of
several bank accounts controlled by Anderson, and each named
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Anderson as a third-party designee authorized to receive private
tax information relating to the filer. When asked about these
returns,

Anderson

prepared

them,

but

stated
an

that

IRS

her

agent

employee,

assigned

to

Tamika
the

Davis,

case

later

testified that he could find “no evidence of an existence of
that person.” J.A. 55.
On September 21, 2011, a federal grand jury in the District
of

South

Carolina

charged

Anderson

in

a

twenty-one

count

superseding indictment with nineteen counts of submitting false,
fictitious, or fraudulent claims against the United States, in
violation of 18 U.S.C. § 287; one count of embezzling public
money or property, in violation of 18 U.S.C. § 641; and one
count of aggravated identity theft, in violation of 18 U.S.C.
§ 1028A.
identities

The
of

indictment
nineteen

alleged
individuals

that
and

Anderson
used

stole

their

the

personal

information to file fraudulent tax returns, with refund payments
routed to accounts under her control.
At trial, the government presented testimony by fourteen
witnesses whose names appeared on tax returns corresponding to
Counts 1, 2, 4-8, 11-14, and 16-18 of the indictment, each filed
using Anderson’s EFIN and PTIN. The witnesses testified that
they did not authorize Anderson to prepare the returns and that
they did not receive any refund payments in connection with the

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returns.

Moreover,

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they

indicated

that

much

of

the

personal information listed on the returns was incorrect.
The
them

government

Ronald

Cooley,

Credit

Union

Agent;

and

Management

also

called

President

(“Brookland”);
Tracy

and

of

witnesses,
Brookland

Sciandra,

an

Manager

of

General

(“RMC”),

other

CEO

Russell

Trivison,

Corporation

seven

Anderson’s

IRS

among

Federal
Special

Receivables

former

employer.

Cooley testified that Anderson controlled multiple accounts at
Brookland and identified certain deposits made by the United
States

Treasury

into

those

accounts.

Sciandra

linked

the

Treasury deposit amounts to refunds claimed on tax returns filed
using Anderson’s EFIN and PTIN. And Trivison testified that,
while

working

for

RMC,

Anderson

had

access

to

the

names,

addresses, social security numbers, and dates of birth of some
of the individuals whose tax returns were filed using Anderson’s
EFIN and PTIN.
The jury found Anderson guilty on twenty of the twenty-one
counts

charged

in

the

indictment.

She

was

acquitted

only

on

Count 10, a false claim charge linked to a tax return for which
the

refund

was

deposited

into

a

separate

bank

account

not

referenced on any of the eighteen other returns. The individual
whose name appeared on the return associated with Count 10 did
not testify at trial.

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In calculating Anderson’s Guidelines sentencing range, the
Presentence

Investigation

Report

(“PSR”)

applied

two

enhancements now at issue in this appeal, one for the number of
victims involved and another for the amount of loss implicated.
The PSR reported that there were nineteen victims of Anderson’s
crimes, triggering a two-level enhancement pursuant to U.S.S.G.
§ 2B1.1(b)(2), and that the intended loss amount was $437,822,
triggering

a

fourteen-level

enhancement

pursuant

to

U.S.S.G.

§ 2B1.1(b)(1)(H). After accounting for these enhancements, the
PSR arrived at a final Guidelines range of 65 to 75 months’
imprisonment.
Counsel for Anderson raised ten objections to the PSR, none
of

which

challenged

the

application

of

the

aforementioned

sentencing enhancements and most of which were resolved prior to
sentencing.

Anderson

herself

also

filed

a

pro

se

objection

challenging the “entire” PSR, but her statement was directed
primarily at the jury’s finding of guilt and not at the proposed
Guidelines range. She did not raise any specific objection to
either

enhancement.

At

the

sentencing

hearing,

the

district

court denied Anderson’s request for a variance, resolved the
outstanding

PSR

objections

--

none

of

which

affected

the

advisory Guidelines range -- and sentenced Anderson to 75 months
of incarceration. This appeal followed.

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II.
Anderson first challenges the sufficiency of the evidence
supporting the jury’s guilty verdict on four of her eighteen
convictions for submitting false or fraudulent claims against
the United States. Although Anderson preserved her objection on
this

issue,

we

note

at

the

outset

that

the

standard

for

overturning a jury verdict is a very difficult one to meet: a
conviction will be reversed for insufficient evidence “only if
no

reasonable

jury

could

have

concluded

beyond

a

reasonable

doubt” that the defendant committed the charged crime. United
States v. Sayles, 296 F.3d 219, 223 n.1 (4th Cir. 2002). On the
other

hand,

if

“substantial

evidence”

--

that

is,

direct

or

circumstantial evidence “that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a
defendant’s

guilt

beyond

a

reasonable

doubt”

--

supports

a

verdict, it will be upheld. United States v. Burgos, 94 F.3d
849, 862 (4th Cir. 1996) (en banc); see also United States v.
Stewart, 256 F.3d 231, 249 (4th Cir. 2001). Put otherwise, only
when the prosecution’s failure to prove its case is “clear” will
the defendant prevail in challenging a jury’s guilty verdict.
Burks v. United States, 437 U.S. 1, 17 (1978).
Anderson specifically attacks her convictions on Counts 3,
9, 15, and 19, four counts for which the government did not
present live witness testimony as to the fraudulent nature of
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the corresponding tax returns. Notwithstanding the jury’s guilty
verdict, Anderson asserts that she is entitled to a judgment of
acquittal because “there is a total absence of evidence” with
respect to the challenged counts. Appellant’s Reply Br. 3. But
her argument is unavailing because the prosecution did present
substantial evidence of her guilt, although that evidence was
not

in

the

form

of

direct

witness

testimony

about

the

four

specific returns related to those counts.
It is well settled that the government is not required to
come

forward

with

any

particular

form

of

evidence

and

may

proffer direct or circumstantial evidence to make its case. See
Stewart, 256 F.3d at 249 (citing Glasser v. United States, 315
U.S. 60, 80 (1942)). Here, the prosecution presented significant
circumstantial evidence demonstrating that Anderson was guilty
on

Counts

3,

9,

15,

and

19,

and

we

therefore

affirm

her

convictions.
The tax returns associated with the four challenged counts
were remarkably similar to those associated with the fourteen
other counts on which Anderson was also convicted. All eighteen
returns contained Anderson’s EFIN and PTIN -- indicating that
she or someone acting at her instruction prepared the returns -and each return directed the IRS to deposit the refund due into
one of two accounts controlled by Anderson. As discussed above,
the

government

presented

direct
7

testimonial

evidence

that

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fourteen of these eighteen returns contained false information
and

were

filed

without

the

authorization

of

the

individuals

named therein, none of whom actually received the associated
refunds. That the four other returns contained the same EFIN,
PTIN, and bank account information as these fourteen is ample
circumstantial evidence from which a reasonable jury could have
concluded -- and, here, did conclude -- that Anderson was guilty
beyond a reasonable doubt on Counts 3, 9, 15, and 19.
We need not resolve the question of precisely how many
returns would, in some other case, be necessary to establish
this

pattern

of

fraud.

Rather,

we

need

hold

only

that

the

pattern established by direct testimony concerning the fourteen
returns

unchallenged

on

appeal

was

sufficient

circumstantial

evidence to justify the jury’s conclusion that the four other
remarkably similar returns were also false or fraudulent. Faced
with the government’s evidence, Anderson offered no satisfactory
explanation to the jury as to why those remaining returns were
not fraudulent. She was, of course, under no obligation to offer
such an explanation, but her failure to do so raised the risk
that the jury would accept the government’s evidence. See United
States v. Echeverri-Jaramillo, 777 F.2d 933, 938 (4th Cir. 1985)
(quoting McGautha v. California, 402 U.S. 183, 215 (1971)).
It

is

worth

noting

that

the

jury

acquitted

Anderson

on

Count 10, the only count for which the corresponding tax return
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directed the refund to a bank account not listed on any of the
eighteen other returns. The acquittal indicates that the jury
was

not

asleep

at

the

wheel

in

this

case

but

actually

did

consider whether the evidence presented by the prosecution -- to
wit, the testimonial evidence and the marked resemblances among
the eighteen tax returns -- established Anderson’s guilt on each
individual

count.

The

jury

was

convinced

by

the

inculpatory

evidence with respect to eighteen of the charged counts, but not
by the evidence with respect to Count 10. This outcome is not
altogether surprising given that the single return in Count 10
deviated

from

the

pattern

displayed

by

the

eighteen

other

returns. That the jury apparently recognized and reacted to a
deviation from the pattern only fortifies the conclusion that
the striking conformity to that pattern of the four convictions
at issue here provided a sound basis for the jury’s verdict.

III.
Next, Anderson challenges the district court’s application
of

a

two-level

§ 2B1.1(b)(2)(A)
involved

in

this

neither

Anderson

sentencing
for

the

case.
nor

enhancement
number

As
her

an

of

victims

initial

attorney

pursuant
--

matter,

objected

to

U.S.S.G.

nineteen
we

to

note
the

--

that
PSR’s

application of this enhancement. Therefore, our review is for
plain error.
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Under the plain-error standard, a defendant “must establish
that the district court erred, that the error was plain, and
that it affected [her] substantial rights.” United States v.
Robinson, 627 F.3d 941, 954 (4th Cir. 2010) (internal quotation
marks and alterations omitted) (citing United States v. Olano,
507 U.S. 725, 734 (1993)). And even if a defendant meets this
heavy

burden,

recognize

the

an

appellate

error,

and

court

should

has
not

“discretion
do

so

whether

unless

the

to

error

seriously affects the fairness, integrity or public reputation
of judicial proceedings.” United States v. Hargrove, 625 F.3d
170, 184 (4th Cir. 2010) (internal quotation marks omitted).
Here, the district court did not commit error -- much less plain
error -- and we therefore affirm its application of the numberof-victims enhancement.
Pursuant

to

U.S.S.G.

§

2B1.1(b)(2)(A),

a

defendant

is

subject to a two-level sentencing enhancement if convicted of a
theft

or

fraud

offense

involving

ten

or

more

victims.

The

commentary to § 2B1.1 generally defines the term “victim” as
“(A)

any

person

who

sustained

any

part

of

the

actual

loss

determined under subsection (b)(1); or (B) any individual who
sustained bodily injury as a result of the offense.” U.S.S.G.
§

2B1.1 cmt. n.1. However, if an offense “involve[s] means of

identification,”

that

definition

10

is

expanded

to

include

“any

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individual whose means of identification was used unlawfully or
without authority.” Id. cmt. n.4(E).
Anderson does not dispute that her conviction brings her
within the scope of § 2B1.1(b)(2)(A) standing alone, given that
she

was

convicted

of

using

the

means

of

identification

of

eighteen different individuals to submit fraudulent tax returns.
See Appellant’s Br. 18. She argues, however, that the number-ofvictims

enhancement

does

enhancement

is

U.S.S.G.

2B1.1(b)(1),

§

Guidelines

based

on

provision

for

not
a

apply

“specific

and

the

to

her

offense

that

characteristic,”

commentary

aggravated

because

a

separate

theft,

identity

to

U.S.S.G.

§ 2B1.6 cmt. n.2, instructs a court to “not apply any specific
offense

characteristic

for

the

.

.

.

use

of

a

means

of

identification when determining the sentence for the underlying
offense” if the defendant is also being sentenced for aggravated
identity

theft

--

as

Anderson

was

here.

The

identity

theft

sentence, so Anderson’s argument goes, is meant to account for
the

unlawful

application

use
of

§ 2B1.1(b)(2)(A)

of

a

means

the

expanded

would

“double

of

identification,

definition
count”

the

of
use

such

that

“victim”
of

the

in

stolen

identities for sentencing purposes. See Appellant’s Br. 18-19.
We decline to embrace Anderson’s reasoning. Like all of our
sister

circuits

to

have

considered

the

issue,

we

conclude

instead that § 2B1.6 does not preclude a district court from
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imposing a number-of-victims enhancement in conjunction with a
sentence for aggravated identity theft. See United States v.
Lyles, 2012 WL 5907483, at *5 (6th Cir. 2012) (unpublished);
United States v. Manatau, 647 F.3d 1048, 1057 n.4 (10th Cir.
2011); United States v. Yummi, 408 F. App’x 537, 541 (3d Cir.
2010) (unpublished); see also United States v. Jenkins-Watts,
574 F.3d 950, 961-62 (8th Cir. 2009).
Comment

2

to

the

aggravated

identity

theft

Guidelines

provision instructs a district court to refrain from applying an
enhancement

only

if

it

is

triggered

by

a

“specific

offense

characteristic for the transfer, possession, or use of a means
of identification.” U.S.S.G. § 2B1.6 cmt. n.2. The most natural
reading of the comment limits its application to enhancements
linked

to

enhancement

the

nature

found

in

of

the

offense,

such

§

2B1.1(b)(11)(C)

as

that

the

two-level

applies

if

an

offense involved “the unauthorized transfer or use of any means
of

identification

means

of

unlawfully

to

identification.”

identification”

enhancement

produce
Applying

from

§

or

obtain

this

any

other

“means

of

2B1.1(b)(11)(C)

in

conjunction with an aggravated identity theft sentence would, in
fact,

augment

a

defendant’s

sentence

twice

for

the

same

substantive conduct -- use of a means of identification. Thus,
per Comment 2, an enhancement under § 2B1.1(b)(11)(C) cannot be
imposed alongside a sentence for aggravated identity theft.
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By contrast, the § 2B1.1(b)(2)(A) enhancement at issue here
looks only to the number of victims of the offense. That the
term “victim” is defined to include the individuals whose means
of

identification

were

used

in

the

crime

does

not

transform

§ 2B1.1(b)(2)(A) into an enhancement triggered by a “specific
offense characteristic for the transfer, possession, or use of a
means of identification.” As the Sixth Circuit has explained,
the number-of-victims enhancement “punishes the impact of the
crime,

not

the

transfer,

possession,

or

use

of

a

means

of

identification.” Lyles, 2012 WL 5907483, at *5. As such, the
instructions contained in Comment 2 do not bar the application
of that enhancement here.

IV.
Finally, Anderson challenges the fourteen-level sentencing
enhancement triggered by the PSR’s conclusion that her intended
loss was $437,822. As with the number-of-victims enhancement,
our review here is for plain error because neither Anderson nor
her

attorney

objected

to

the

PSR’s

calculation

of

the

loss

amount or to the district court’s subsequent application of the
corresponding
contentions,

enhancement.
we

After

find

error

no

plain

sentencing decision on this point.

13

reviewing
in

the

Anderson’s

district

court’s

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Although
revealed

the

the

PSR

actual

states

loss

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that

amount

“[t]he

was

facts

of

$437,822.00,”

the

case

J.A.

470,

Anderson contends that she is subject to an enhancement only for
the loss of $65,911 that was found by a jury, see Appellant’s
Br.

24-25.

consider

However,

facts

not

it
found

is

clear

by

a

that

jury

a

district

when

issuing

court
a

may

sentence

somewhere between the statutory minimum and maximum. See Harris
v. United States, 536 U.S. 545, 566 (2002). 1 Here, the district
judge

made

Anderson’s

a

factual

intended

finding

loss

--

amount

based
was

on

the

$437,822.

PSR
That

--

that

finding

triggered an enhancement but did not take Anderson’s sentence
beyond

the

statutory

maximum

for

her

offenses.

A

sentencing

judge must remain free to make run-of-the-mill factual findings
underlying

advisory

Guidelines

enhancements

without

eliciting

constitutional concerns. That is all the judge did here, and the
amount-of-loss enhancement was thus permissible.
Anderson next complains that, even if the trial judge was
free to impose an enhancement based on facts not found by a
jury, the government failed to provide sufficient evidence to
1

Anderson asks us to vacate her sentence and remand the
matter in light of the Supreme Court’s grant of certiorari in
United States v. Alleyne, 457 F. App’x 348 (4th Cir. 2011)
(unpublished), cert. granted, 133 S. Ct. 420 (2012) (No. 119335). However, Alleyne involves the application of mandatory
minimum sentences and is not relevant to the advisory Guidelines
enhancement dispute here.

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support the PSR’s loss calculation of $437,822. Appellant’s Br.
21.

But

because

we

must

the

reject

government

Anderson’s
is

not

contention

required

to

at

the

present

outset,
evidence

demonstrating the accuracy of facts in a PSR. See United States
v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). When challenging a
PSR, a defendant “has an affirmative duty to make a showing that
the information in the [document] is unreliable, and articulate
the

reasons

why

the

facts

contained

therein

are

untrue

or

inaccurate.” Id. “Without an affirmative showing the information
is inaccurate, the court is ‘free to adopt the findings of the
[PSR]

without

more

specific

inquiry

or

explanation.’”

Id.

(quoting United States v. Mueller, 902 F.2d 336, 346 (5th Cir.
1990)). Here, Anderson failed to make an affirmative showing
that

the

loss

unreliable,

calculation

and

her

in

objection

the
to

PSR

that

was

inaccurate

calculation

now

or
must

therefore fail.
Moreover,
separate

Anderson’s

reason:

the

argument

record

does

misses
contain

the

mark

unrebutted

for

a

evidence

supporting the PSR’s loss calculation. We note as an initial
matter that, for Guidelines sentencing purposes, loss amount is
not

limited

to

the

actual

loss

resulting

from

the

charged

conduct. Rather, the Guidelines indicate that the defendant’s
intended loss
loss,

U.S.S.G.

is
§

the

relevant

2B1.1

cmt.

figure

when

n.3(A),

and

15

it

exceeds

both

actual

charged

and

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uncharged conduct may be considered, see U.S.S.G. § 1B1.3(a) &
cmt. background. Moreover, a sentencing court need not precisely
calculate

intended

loss,

as

the

Guidelines

require

only

“a

reasonable estimate of the loss.” U.S.S.G. § 2B1.1 cmt. n.3(C).
At trial, the government introduced certain bank statements
from Anderson’s accounts at Brookland, but was not permitted to
introduce evidence that the Treasury deposited $333,403 worth of
tax

refunds

ruled

that

into
the

those

accounts

government

in

could

2008.

The

introduce

district

evidence

judge

of

loss

associated with only the nineteen counts charged in this case.
Thus, the jury was not permitted to review the $333,403 figure,
although it is referenced in the record. 2
It is well settled, however, that the ordinary rules of
evidence do not apply in the sentencing phase of a criminal
proceeding.

See

18

U.S.C.

§

3661;

Fed.

R.

Evid.

1101(d)(3).

Thus, the fact that indications of the total loss amount were
not before the jury did not bar the PSR or the trial judge from
using such evidence to determine Anderson’s sentence. Of course,
in

the

absence

of

any

objection,

2

the

government

had

no

The record also indicates that the IRS was “actually able
to identify some of the refunds as fraudulent and stop them
before they went out.” J.A. 274. Therefore, it is unremarkable
that Anderson’s intended loss amount ($437,822) exceeds the
amount of fraudulent tax refund payments actually deposited into
her accounts ($333,403).

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obligation

to

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affirmatively

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establish

the

total

loss

amount

stated in the PSR in the first place. See Terry, 916 F.2d at
162.

However,

the

ample

evidentiary

support

for

that

loss

calculation only bolsters our conclusion that the district court
did not err -- much less commit plain error -- when it applied
the fourteen-level sentencing enhancement in this case.

V.
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED

17

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Pg: 18 of 20

WYNN, Circuit Judge, dissenting:
To prove a violation 18 U.S.C. § 287, the government bears
the

burden

of

establishing

“two

elements:

1)

making

or

presenting a claim to any agency of the United States 2) knowing
such

claim

to

be

false,

fictitious,

or

fraudulent.”

United

States v. Ewing, 957 F.2d 115, 119 (4th Cir. 1992).

There is no

dispute

constitutes

that

filing

a

tax

return

“presenting a claim” to the IRS.

for

a

refund

The key issue here is whether

the government presented sufficient evidence to show that each
of the tax returns in this matter supporting an individual count
under 18 U.S.C. § 287 was “false, fictitious, or fraudulent.”
For the fourteen returns supporting Counts 1, 2, 4-8, 1114, and 16-18, the government presented not only the returns but
also the persons named on those returns, who testified that the
returns were unauthorized and or inaccurate.

Accordingly, I

agree with the majority that the government met its burden of
proof under 18 U.S.C. § 287 as to those fourteen counts.
As to Counts 3, 9, 15, and 19, however, the government
presented only the four returns.

The government essentially

argued that because these naked returns looked just like the
fourteen returns clothed by witnesses’ testimonies, they were
dressed in the requisite criminality.

The majority apparently

agreed, stating that the four naked returns were “remarkably
similar”

to

the

returns

clothed
18

by

witnesses’

testimonies.

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7.

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But

the

only

Pg: 19 of 20

similarities

between

the

naked

and

clothed returns—the tax preparer information (PTIN and EFIN) and
refund destination—show nothing inherently false or fraudulent
about the four naked returns.
Moreover, the use of the PTIN and EFIN shows only that DL
Anderson

prepared

unauthorized.
only

return,

not

that

this

preparation

was

Similarly, the use of the routing number shows

that

the

controlled

by

unsanctioned.

the

refund

was

Anderson,

to

be

not

deposited
that

into

this

an

account

direction

was

Nor is it unlawful to direct a refund to a tax

preparer or another third party.

Put simply, the tax preparer

information (PTIN and EFIN) and refund destination appear on all
returns filed by tax preparers.

Indeed, based on this evidence,

the returns were just as likely honest and accurate as they were
fraudulent and false.
Further, merely associating these naked returns with the
fourteen other returns was an insufficient basis for convicting
Anderson on Counts 3, 9, 15, and 19.
be

used

to

connect

establish intent.

a

crime

to

a

A pattern of conduct may
particular

individual

or

Here, however, the pattern is not being used

to infer that it was Anderson who filed the four returns, but
that those returns were false in the first place—that there was,
in fact, a crime.

See United States v. Drape, 668 F.2d 22, 26

(1st Cir. 1982) (“Appellant’s signature on his [tax] return was
19

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sufficient to establish knowledge once it had been shown that
the return was false.”) (emphasis added).
as

“[t]he

first

presumption

is

that

a

Yet this cannot be,
defendant

is

innocent

unless and until the government proves beyond a reasonable doubt
each element of the offense charged.”
U.S. 735, 766 (2006).

Clark v. Arizona, 548

Drawing this inference belies the bedrock

principle of criminal law that the government bears the burden
of proving each element of an offense.

In re Winship, 397 U.S.

358,

the

364

(“[W]e

explicitly

hold

that

Due

Process

Clause

protects the accused against conviction except upon proof beyond
a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.”).
To be sure, the government need not have presented direct
witness testimony to demonstrate that the tax returns associated
with

Counts

3,

9,

nonetheless,

some

government’s

burden

presented.

15,

and

19

evidence
to

were

was

prove

false

required

this

or
to

element—and

fraudulent;
carry

the

none

was

Because the evidence at trial was insufficient for

any rational fact-finder to conclude beyond a reasonable doubt
that

these

four

naked

returns

respectfully dissent.

20

were

false

or

fraudulent,

I