US v. Brandon Samuel

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 3:14-cr-00606-JMC-3. Copies to all parties and the district court. [1000133686]. [16-4824]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4824

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRANDON JAMAR SAMUELS,
Defendant – Appellant.

Appeal from the United States District Court for the District of South Carolina, at
Columbia. J. Michelle Childs, District Judge. (3:14-cr-00606-JMC-3)

Submitted: June 2, 2017

Decided: August 9, 2017

Before DUNCAN, DIAZ, and HARRIS, Circuit Judges.

Affirmed by unpublished opinion. Judge Duncan wrote the opinion, in which Judge Diaz
and Judge Harris joined.

Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South Carolina, for
Appellant. Beth Drake, United States Attorney, T. DeWayne Pearson, 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Unpublished opinions are not binding precedent in this circuit.

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DUNCAN, Circuit Judge:
Defendant-Appellant Brandon Samuels appeals his conspiracy conviction under
18 U.S.C. § 371 and the amount of the district court’s restitution order. For the reasons
that follow, we affirm.

I.
A.
In January 2012, the Internal Revenue Service (“IRS”) identified several
potentially fraudulent individual income tax returns prepared by Daitech Tax Services,
LLC (“Daitech”), a tax-preparation company located in Columbia, South Carolina. In
March 2012, IRS Special Agent Shan-Tika Watkins arrived at Daitech, posing
undercover as a potential customer. Daitech employees assisted and encouraged Special
Agent Watkins to claim false deductions. Based on this undercover operation, the IRS
served a search warrant on Daitech and uncovered a pattern of filing fraudulent tax
returns on behalf of its customers. During their review, investigators examined and
sorted tax returns by preparer name and determined that Daitech owner Eric Pinckney,
Daitech office manager Lemuel Brown, and Defendant, a part-time tax preparer for the
company, filed the most returns during their time at Daitech.

B.
A grand jury indicted Defendant on July 22, 2015, along with co-defendants
Pinckney and Brown, on one count of criminal conspiracy to file fraudulent income tax
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returns in violation of 18 U.S.C. § 371. During the two-day trial, multiple witnesses
testified about Daitech’s practice of filing false tax returns. For example, Pinckney
admitted that he personally, along with Defendant and other Daitech employees, filed
false returns in an effort to get his clients more money. He explained that Daitech could
create false returns in a variety of ways, depending on the client’s situation. One of the
ways Daitech employees falsified tax returns was creating fraudulent business expenses
for clients. Pinckney testified, for instance, that Daitech employees, including Defendant,
would claim a client’s entire cellular telephone bill as a business expense even when that
would be improper. Pinckney also testified to (1) claiming vehicle mileage, meals, and
entertainment as expenses for a business that had no sales and (2) using a per diem
expense calculation that Pinckney made up. He said that Daitech was “known for” being
a place where clients could go without having a lot of income, J.A. 313, and “yet receive
a decent refund,” J.A. 314.
Several witnesses testified about Defendant’s actions at Daitech, where he worked
from 2007 through 2011. Lutrica Singletary, a former Daitech customer, testified that
she requested Defendant prepare her tax return in 2009, and that Defendant claimed food,
entertainment, and utilities expenses for a childcare business even though he was aware
she did not own or operate a childcare business. Frank Hyland, another former Daitech
customer, testified that Defendant knowingly created fraudulent mileage, costs of goods
sold, advertising, and utilities expenses on Hyland’s returns for a non-existent personal
training business.

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The jury found Defendant guilty of conspiracy on March 2, 2016. The district
court sentenced Defendant on December 5, 2016 to five years of probation and ordered
Defendant to pay to the IRS restitution of $18,070.43 out of the $152,859.43 total loss
attributed to the conspiracy. Defendant appealed both the conviction and the restitution
amount.

II.
Defendant seeks reversal of the denial of his motion for a judgment of acquittal,
claiming insufficiency of the evidence. This court reviews a denial of a motion for
judgment of acquittal de novo. United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006).
When reviewing for sufficiency of the evidence, we will not overturn a verdict if “after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). This court must “allow the government
the benefit of all reasonable inferences from the facts proven to those sought to be
established.” United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
Defendant also argues that his restitution should be reduced to only the amount
attributable to false returns for Daitech customers who specifically identified him as their
tax preparer. We review a restitution order for abuse of discretion. United States v.
Leftwich, 628 F.3d 665, 667 (4th Cir. 2010).
contentions in turn.

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We address each of Defendant’s

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A.
Although several Daitech customers testified that Defendant created false tax
returns for them, Defendant claims that there was not sufficient evidence to establish his
agreement with Pinckney or Brown to engage in a conspiracy to file fraudulent returns.
To obtain a conspiracy conviction under 18 U.S.C. § 371, the government must prove:
“an agreement to commit an offense, willing participation by the defendant, and an overt
act in furtherance of the conspiracy.”
(4th Cir. 2004).

United States v. Tucker, 376 F.3d 236, 238

“[A] common purpose and plan may be inferred from all the

circumstances.” United States v. Barnes, 747 F.2d 246, 249 (4th Cir. 1984).

The

government may prove knowledge and participation in the conspiracy by circumstantial
evidence. Tucker, 376 F.3d at 238.
Pinckney’s testimony, along with other witness testimony describing Defendant’s
preparation of false tax returns, was sufficient for the jury to infer that Defendant agreed
to file fraudulent tax returns and willingly participated in the conspiracy. Pinckney
testified that it was not necessary for him to “specifically seek [employees] out and tell
them that that’s what they were supposed to be doing” because Daitech was “known for”
such practices. J.A. 313. He also testified that Defendant filed false returns using the
same fraudulent practices that Pinckney used. In fact, Pinckney testified that employees
at Daitech, including Defendant, “could manipulate the numbers and see how it changed
the refund.” J.A. 314. Daitech customers confirmed that Defendant engaged in this same
kind of fraud, which supports the inference that Defendant agreed to participate in the
conspiracy to falsify tax returns.

Singletary described how Defendant created a
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fraudulent childcare business operating out of her apartment and expenses including food,
entertainment, and utilities on her 2009 tax return.

Hyland testified that although

Defendant knew Hyland did not own a personal training business, Defendant
recommended that he create one on his 2009 and 2010 tax returns to get more money
back. Hyland further testified that Defendant claimed costs for advertising as well as
mileage from his regular job as expenses for his non-existent personal training business.
Based on this testimony, the jury had sufficient evidence to conclude that Defendant
conspired to file fraudulent tax returns.

B.
We next consider whether the district court abused its discretion in the amount of
restitution it ordered Defendant to pay to the IRS. In conspiracy prosecutions, district
courts may propose “broader restitution orders encompassing losses that result from a
criminal scheme or conspiracy, regardless of whether the defendant is convicted of each
criminal act within that scheme.”

United States v. Ocasio, 750 F.3d 399, 412

(4th Cir. 2014) (quoting United States v. Henoud, 81 F.3d 484, 488 (4th Cir. 1996)). A
restitution award is appropriate if the act in question that harms the victim is “either
conduct underlying an element of the offense of the conviction, or an act taken in
furtherance of a scheme, conspiracy, or pattern of criminal activity that is specifically
included as an element of the offense of conviction.” United States v. Blake, 81 F.3d
498, 506 (4th Cir. 1996).

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The Mandatory Victims Restitution Act (“MVRA”) requires full payment of
restitution for offenses against property including any offense committed by fraud or
deceit. 18 U.S.C. § 3663A(c)(1)(A)(ii). In accordance with 18 U.S.C. § 3664(h), “the
court may make each defendant liable for payment of the full amount of restitution.”
This court has held that the district court can exercise its discretion to mitigate the
restitution in two ways. “It may relax the ‘manner’ of payment based on the defendant’s
financial resources, and it may apportion the payment among defendants if more than one
defendant has contributed to the loss.” United States v. Newsome, 322 F.3d 328, 341
(4th Cir. 2003). The district court here apportioned the payment among Defendant and
the other co-conspirators, requiring Defendant to pay the restitution for amounts
attributable to his Preparer Tax Identification Number (“PTIN”).
Defendant argues that the restitution he owes the IRS should be limited to the
amount arising from the fraudulent tax returns filed for those customers who could
specifically identify him as their tax preparer. However, because the preparation of all of
the fraudulent returns by Daitech were made in furtherance of the conspiracy and were
reasonably foreseeable, Defendant could have been accountable for the entirety of the
loss accrued under the conspiracy. See 18 U.S.C. § 3664(h). Defendant’s restitution,
which the district court recognized could be much higher, included only tax returns with
Defendant’s name and PTIN and did not include those filed after Defendant’s departure
from Daitech.

The district court also credited Defendant for the $6,027 made in

repayments by Daitech customers to the Treasury. The district court did not abuse its

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discretion in holding Defendant responsible for those returns filed using his name and
PTIN even absent testimony specifically identifying Defendant as the preparer.

III.
The judgment of the district court is affirmed. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED

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