USA v. Allen Brice
UNPUBLISHED OPINION FILED. [17-60374 Affirmed] Judge: CDK, Judge: JWE, Judge: SAH. Mandate issue date is 05/07/2018 for Appellant Allen Brice [17-60374]
Date Filed: 04/13/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
April 13, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:16-CR-2-2
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Allen Brice appeals his jury trial convictions on seven counts of aiding
and assisting in the preparation and presentation of a false tax return and his
cumulative sentence of 63 months of imprisonment. See 26 U.S.C. § 7206(2).
Reviewing de novo, we affirm. See United States v. Jara-Favela, 686 F.3d 289,
299 (5th Cir. 2012).
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Date Filed: 04/13/2018
The convictions resulted from Brice’s work preparing income tax returns
in the office of Flash Financial, a Gulfport, Mississippi, business owned by his
co-defendant, Jeremi Washington. Each count charged that Brice did willfully
aid and assist in, and procure, counsel, and advise the preparation and
presentation to the Internal Revenue Service of a materially false tax return.
In its jury instructions, the district court stated that § 7206 makes it a crime
for anyone to willfully aid or assist in the preparation of a document under the
Internal Revenue laws that is false or fraudulent as to any material matter.
We reject Brice’s argument that the district court erroneously permitted
a constructive amendment of the indictment by not requiring the Government
to prove all matters alleged conjunctively in each count of conviction; the
district court’s jury charge comports with our precedent. See United States v.
Bennett, 874 F.3d 236, 257 (5th Cir. 2017); United States v. Holley, 831 F.3d
322, 328 n.14 (5th Cir. 2016). We see no merit in Brice’s contention that a
defendant is prejudiced if the Government is not required to commit, before
trial, to what Brice calls the indictment’s material elements that that the
Government intends to prove.
Our caselaw amply alerts a defendant to
prepare a defense against each and every means of violating a disjunctive
statute alleged conjunctively in an indictment, as proof of even one of them
suffices for a conviction. See Bennett, 874 F.3d at 257; Holley, 831 F.3d at 328.
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