US v. Edgar Foxx

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:14-cr-00013-NKM-1 Copies to all parties and the district court/agency. [1000041856].. [16-4355, 16-4371]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4355

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDGAR EUGENE FOXX,
Defendant - Appellant.

No. 16-4371

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CONTINA RENA FOXX,
Defendant - Appellant.

Appeals from the United States District Court for the Western
District of Virginia, at Lynchburg.
Norman K. Moon, Senior
District Judge. (6:14-cr-00013-NKM-1; 6:14-cr-00013-NKM-2)

Submitted:

February 17, 2017

Decided

March 14, 2017

Before KEENAN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

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Affirmed by unpublished per curiam opinion.

Dana R. Cormier, DANA R. CORMIER, P.L.C., Staunton, Virginia; Fay
F. Spence, First Assistant Federal Public Defender, Roanoke,
Virginia, for Appellants. Caroline D. Ciraolo, Principal Deputy
Assistant Attorney General, S. Robert Lyons, Chief, Criminal
Appeals & Tax Enforcement Policy Section, Gregory Victor Davis,
Katie Bagley, Tax Division, DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Following a jury trial, Edgar Foxx was convicted of making a
false statement on a tax return, three counts of failure to file
a tax return, and theft of government property. The district court
sentenced him to 41 months’ imprisonment.

Contina Foxx, his wife,

was convicted of theft of government property and making a false
statement in connection with an application for federal health
care benefits.

The district court sentenced her to 30 months’

imprisonment.

On appeal, they contend that the district court

erred by denying Edgar’s motion for government funds to hire a
forensic accountant and denying Contina’s motion in limine in which
she sought to exclude evidence of her prior convictions.

They

also argue that the district court erred in determining the amount
of tax loss attributable to them at sentencing.

We affirm.

The district court is authorized to provide funds for a
defendant to hire an expert upon “a preliminary showing” that such
services

are

necessary

to

(2012).

This

§ 3006A(e)(1)
discretion

the

denial

of

an

adequate
court

expert

defense.

reviews

services,

for

18
an

United

U.S.C.

abuse

of

States

v.

Hartsell, 127 F.3d 343, 349 (4th Cir. 1997), and any error in the
determination is reversible only upon a showing that the denial of
expert services was prejudicial to the defense.
Perrera, 842 F.2d 73, 77 (4th Cir. 1988).

United States v.

We have reviewed the

Foxxes’ arguments in support of the provision of funds and conclude
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that the district court did not abuse its discretion in denying
the request for funds.

Notably, deduction and expense amounts

were not relevant to the determination of the Foxxes’ culpability
on

the

charged

prejudice.

offenses,

and

they

failed

to

demonstrate

any

See 26 U.S.C. § 6012 (2012); see also Hartsell, 127

F.3d at 349.
To

the

extent

that

the

Foxxes

assert

that

a

forensic

accountant could have assisted in determining the amount of loss
and restitution for sentencing purposes, we note that the Foxxes
did not renew their request for funds post-conviction, despite the
district court expressly stating that it would be willing to
reconsider its ruling after the Foxxes received the discovery
materials from the Government.
Next, Contina challenges the district court’s denial of her
motion

in

limine

in

which

she

sought

to

exclude,

on

cross-

examination, evidence of her prior convictions of seven counts of
false statement in connection with obtaining welfare assistance.
See Va. Code Ann. § 63.2-502 (2007) (“Any person who knowingly
makes any false application for public assistance . . . shall be
guilty of perjury.”).

She argues that the prejudicial impact of

the evidence outweighed its probative value.
district

court

correctly

concluded,

where

a

However, as the
prior

conviction

involves an act of dishonesty, Fed. R. Evid. 609(a)(2) does not
provide

for

a

weighing

of

the
4

prejudicial

effect

versus

the

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probative value of the evidence, but rather evidence of these
crimes is automatically admissible.

United States v. Harper, 527

F.3d 396, 408 (5th Cir. 2008) (“Crimes qualifying for admission
under Rule 609(a)(2) are not subject to Rule 403 balancing and
must

be

admitted.”).

In

fact,

the

district

court

“has

no

discretion to exclude evidence that qualifies” for admission under
Rule 609(a)(2).

United States v. Kelly, 510 F.3d 433, 438 (4th

Cir. 2007) (citing United States v. Cunningham, 638 F.2d 696, 698
(4th Cir. 1981)).

Accordingly, we affirm the district court’s

determination that evidence of Contina’s prior convictions was
admissible without consideration of prejudicial effect.
Lastly, the Foxxes argue that the district court erred by not
taking into account their evidence presented at sentencing as to
the actual amount of taxes they would have owed had they filed tax
returns, but rather using an estimation of tax loss provided by
the Sentencing Guidelines.
Foxxes

presented

the

During the sentencing hearing, the

testimony

of

Melissa

Wilson,

who,

in

preparation for the sentencing hearing, had prepared income tax
returns for the Foxxes for the years 2008 through 2011.

She

calculated the Foxxes’ total tax liability for those years to be
$35,748.
A special agent with the Internal Revenue Service testified
that he computed the Foxxes’ gross income by reference to the
records of

receipts

from

various
5

scrap

metal

companies.

He

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determined that the Foxxes’ tax liability was $172,000 by applying
the formula in the Sentencing Guidelines, which provides that, in
the absence of adequate records, tax loss can be determined as 20
percent of gross income.
§ 2T1.1(c)(2)(Note

(A))

See U.S. Sentencing Guidelines Manual
(2015).

The

court

expressly

found

Wilson’s testimony incredible and adopted the tax loss estimate
provided by the Guidelines.
When

reviewing

the

district

court’s

application

of

the

Sentencing Guidelines, this court reviews legal conclusions de
novo and factual determinations for clear error.
Manigan,

592

F.3d

621,

626

(4th

Cir.

2010).

determinations are afforded “great deference.”
Layton,

564

F.3d

330,

334

(4th

Cir.

United States v.
Credibility

United States v.

2009).

The

court’s

determination of the amount of loss for sentencing purposes is a
factual finding, which this court reviews for clear error.

United

States v. Mehta, 594 F.3d 277, 281 (4th Cir. 2010).
The tax loss due to the failure to file a tax return is “the
amount of tax that the taxpayer owed and did not pay.”
§ 2T1.1(c)(2).

USSG

Tax loss “shall be treated as equal to 20% of the

gross income . . . unless a more accurate determination of the tax
loss can be made.”

USSG § 2T1.1(c)(2)(Note (A)).

The Foxxes contend that Wilson’s testimony and her revised
tax returns provided more accurate information as to their tax
loss.

However, Wilson admitted that her computations were based
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on a number of assumptions and that the returns she prepared “at
best, were just a guesstimate.”
While the district court is instructed to reasonably estimate
the tax loss and to account for any unclaimed deduction, credit or
exemption,

the

eligibility

defendant

for

the

has

the

deduction,

burden

of

exemption

establishing
or

credit

by

his
a

preponderance of the evidence, and “the credit, deduction, or
exemption [must be] reasonably and practically ascertainable.”
USSG 2T1.1, comment. (n.3).

Also, the district court is not

required to accept calculations of tax loss that it finds to be of
“doubtful reliability.”

United States v. Montgomery, 747 F.3d

303, 313-14 (5th Cir. 2014); see United States v. Collins, 685
F.3d 651, 659 (7th Cir. 2012).
We have reviewed the record and have determined that the
district court did not clearly err in determining that Edgar’s
business

expenses

were

not

“reasonably

and

practically

ascertainable” USSG § 2T1.1, comment. (n.3), and in therefore
estimating the tax loss as 20 percent of gross income.

See United

States v. Psihos, 683 F.3d 777, 783 (7th Cir. 2012) (holding that
district

court

permitted

to

reject

evidence

as

to

deductions where taxpayer provided no documentation).

unclaimed

Further, we

conclude that the calculation of the amount of tax loss was not
clearly erroneous.

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Accordingly, we affirm the district court’s judgments.

We

dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED

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