USA v. Meredith

Filing

FILED OPINION (ANDREW J. KLEINFELD, MILAN D. SMITH, JR. and ALGENON L. MARBLEY) AFFIRMED IN PART; VACATED; REMANDED IN PART., Judge: MDS Authoring. FILED AND ENTERED JUDGMENT. [8227737] [05-50452, 05-50457, 05-50473]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LYNNE MEREDITH, a/k/a BONITA
LYNNE MEREDITH, LYNNE MERIDITH,
LYNN MERIDITH and LYNN
MEREDITH,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERESA MANHARTH GIORDANO,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GAYLE BYBEE,
Defendant-Appellant.

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

No. 05-50452
D.C. No.
CR-02-00372DDP-01

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No. 05-50457
D.C. No.
CR-02-00372DDP-4

No. 05-50473
D.C. No.
CR-02-00372DDP-02
OPINION

Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
April 9, 2012—Pasadena, California
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UNITED STATES v. MEREDITH

Filed June 26, 2012
Before: Andrew J. Kleinfeld and Milan D. Smith, Jr.,
Circuit Judges, and Algenon L. Marbley, District Judge.*
Opinion by Judge Milan D. Smith, Jr.

*The Honorable Algenon L. Marbley, District Judge for the U.S. District Court for the Southern District of Ohio, sitting by designation.

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COUNSEL
Gretchen Fusilier (argued), Carlsbad, California,
defendant-appellant Teresa Manharth Giordano.

for

Joe Alfred Izen, Jr. (argued), Bellaire, Texas, for defendantappellant Lynne Meredith.
Marcia J. Brewer, Culver City, California, for defendantappellant Gayle Bybee.
André Birotte Jr., United States Attorney, Robert E. Dugdale,
Assistant United States Attorney, Chief, Criminal Division,
and Jean-Claude André (argued), Assistant United States
Attorney, Los Angeles, California, for the plaintiff-appellee.

OPINION
M. SMITH, Circuit Judge:
Defendant-Appellants Lynne Meredith, Teresa Manharth
Giordano, and Gayle Bybee appeal their jury convictions for
conspiracy to defraud the United States, mail fraud, false rep-

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resentation of a Social Security number, passport fraud, and
failure to file income tax returns. Their convictions arose from
their participation in businesses that helped customers evade
federal and state income taxes.
Defendants-Appellants contend that their convictions violate the First Amendment. We agree that mere advocacy of
tax evasion — and nothing more — cannot support convictions for conspiracy or fraud. However, the defendants did far
more than advocate. They developed a vast enterprise that
helped clients hide their income from federal and state tax
authorities. Accordingly, we reject their claims that their convictions violated the First Amendment. We also reject Giordano’s claim that the indictment erroneously included
misdemeanor crimes among the eighty-one objects of the felony conspiracy count, and her challenge to the district court’s
jury instruction on the crime of failure to file income taxes.
However, we vacate Giordano’s restitution order and remand
for recalculation because the district court failed to consider
evidence that Giordano presented at sentencing.
Defendants-Appellants’ other claims of error are addressed
in a memorandum disposition filed contemporaneously with
this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Beginning in 1994, Meredith owned and operated various
businesses, including We the People (WTP), Free the People,
Sovereignty Pure Trusts, and Liberty International. These
organizations sold books and held seminars that instructed
people how to avoid paying any personal income taxes. Giordano worked for WTP, and other Meredith-created businesses, as a paralegal, drafting correspondence to the IRS and
the California Franchise Tax Board on behalf of clients.
Bybee served as International Marketing Director for Liberty
International and trust salesperson for Liberty International
and Sovereignty Pure Trusts.

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Meredith wrote two books, “How to Cook a Vulture” and
“Vultures in Eagle’s Clothing,” which explained how people
could stop paying income taxes. The books instructed customers to falsely report to the IRS that they did not owe income
taxes. Meredith and Bybee also organized seminars in which
Meredith instructed customers how to evade paying income
taxes.
At the heart of the defendants’ operations was a financial
instrument known as a “pure trust,” which they claimed was
exempt from taxes. The defendants sold these trusts to customers who learned about Meredith’s theories at seminars and
in her books. WTP opened bank accounts for customers using
a nine-digit “trust identification number,” which was not the
customers’ social security numbers or an employer identification number issued by the IRS for the purported trust.
Meredith, Giordano, Bybee, and co-defendants Betty Erickson, Gregory Karl, Nora Moore, Toni Smith, and Willie Watts
were indicted on April 11, 2002. Count 1 charged them with
conspiring to defraud the United States by impeding, impairing, obstructing, and defeating the lawful functions of the IRS
in the ascertainment, computation, assessment, and collection
of federal taxes, in violation of 18 U.S.C. § 371. Counts 2-12
charged them with mail fraud, in violation of 18 U.S.C.
§ 1341, and alleged that they sold “bogus trusts, bank
accounts, and books misrepresenting that fraudulent income
tax returns could legitimately be filed . . . as true and accurate
income tax returns.” Counts 13 and 14 charged Meredith with
false representation of a Social Security number, in violation
of 42 U.S.C. § 408(a)(7)(B). Count 15 charged Meredith with
passport fraud, in violation of 18 U.S.C. § 1542. Counts 16-35
charged the defendants with misdemeanor failure to file
income tax returns, in violation of 26 U.S.C. § 7203.
Smith pleaded guilty before trial. The remaining seven codefendants went to trial on February 10, 2004. Defendants
moved for judgments of acquittal at the close of the govern-

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ment’s case, and the court deferred the ruling. The court
granted the government’s motion to dismiss counts 6, 7, 9, 10,
and 11 on April 8, 2004, and it dismissed counts 2, 3, 4, and
5 against Bybee. On May 3, 2004, the jury found Meredith
guilty on counts 1, 2, 3, 5, 8, and 13-20, Bybee guilty on
counts 1, 21, 22, and 23, and Giordano guilty on counts 1, 2,
3, 5, 8, 24, and 25. The jury also found Karl, Watts, Erickson,
and Moore guilty on various counts. Erickson and Moore did
not appeal. We affirmed Karl and Watts’s convictions in an
unpublished decision on January 11, 2008. United States v.
Karl, 264 F. App’x 550 (9th Cir. 2008).
On June 6, 2005, the district court sentenced Meredith to
121 months’ imprisonment, Bybee to 60 months’ imprisonment, and Giordano to 40 months’ imprisonment. Bybee,
Giordano, and Meredith filed timely notices of appeal, in June
2005.
JURISDICTION AND STANDARDS OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291.
“We review de novo whether the district court’s instructions adequately presented the defendant’s theory of the case,
but we review the instruction’s precise formulation for an
abuse of discretion.” United States v. Stinson, 647 F.3d 1196,
1215 (9th Cir. 2011) (internal quotation marks and citation
omitted).
Sentencing decisions are reviewed for abuse of discretion.
See United States v. Carty, 520 F.3d 991, 993 (9th Cir. 2008)
(en banc).
DISCUSSION
I.

Sufficiency of the evidence

Defendants-Appellants challenge the sufficiency of the evidence underlying their convictions for mail fraud, conspiracy,

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false representation of a Social Security number, and passport
fraud.
To evaluate the sufficiency of the evidence on appeal, we
conduct a two-part inquiry. First, we “must consider the evidence presented at trial in the light most favorable to the prosecution.” United States v. Nevils, 598 F.3d 1158, 1164 (9th
Cir. 2010) (en banc) (citation omitted). Second, we “must
determine whether this evidence, so viewed, is adequate to
allow any rational trier of fact [to find] the essential elements
of the crime beyond a reasonable doubt.” Id. (internal quotation marks and citation omitted).
A.

Mail fraud and conspiracy

Defendants-Appellants contend that insufficient evidence
supports their conspiracy and mail fraud convictions because
their conduct was protected by the First Amendment.
To evaluate this argument, we first outline the level of First
Amendment protection the Constitution provides to anti-tax
activities. Next, we examine the evidence supporting each of
the mail fraud and conspiracy charges, and determine whether
the First Amendment protects those acts.
1.

First Amendment and anti-tax activities

[1] The First Amendment prohibits any law “abridging the
freedom of speech[.]” U.S. Const. amend. I. However, the
Supreme Court has carved out some limited categories of “unprotected” speech, including “obscenity, defamation, fraud,
incitement, and speech integral to criminal conduct.” United
States v. Stevens, 130 S. Ct. 1577, 1584 (2010) (citations
omitted).
At issue here is the First Amendment exception that allows
the government to regulate speech that is integral to criminal
conduct. This exception first arose in Giboney v. Empire Stor-

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age & Ice Co., 336 U.S. 490 (1949), in which a state court
prevented unions from picketing to force a distributor to enter
an agreement that violated state anti-trade restraint law. Id. at
491-92. The Supreme Court upheld this ruling, rejecting the
contention that “the constitutional freedom for speech and
press extends its immunity to speech or writing used as an
integral part of conduct in violation of a valid criminal statute.” Id. at 498.
[2] In United States v. Freeman, 761 F.2d 549 (9th Cir.
1985), we applied this exception to a tax evasion case. The
defendant was convicted of fourteen counts of aiding and
abetting, and counseling violations of the tax laws. Id. at 551.
The jury was not instructed on a First Amendment defense,
and therefore we reversed the convictions on the twelve counseling counts. Id. at 551-52. However, we affirmed the convictions on the counts for assisting in the filing of false
returns. We held that “[i]n those instances, where speech
becomes an integral part of the crime, a First Amendment
defense is foreclosed even if the prosecution rests on words
alone.” Id. at 552.1
Meredith relies primarily on United States v. Dahlstrom,
713 F.2d 1423 (9th Cir. 1983), which involved defendants
who held seminars at which they “instructed members on how
to create foreign trust organizations (FTO’s) in order to
1

At oral argument, Meredith’s counsel suggested that United States v.
Alvarez, 617 F.3d 1198 (9th Cir. 2010), requires us to invalidate any
restrictions on speech. We disagree. In Alvarez, we struck down a federal
statute that imposed a criminal penalty on any individual who falsely
claimed to have been awarded a military decoration or medal. Id. at 1202.
We held that this statute is unconstitutional because it “applies to pure
speech; it imposes a criminal penalty of up to a year of imprisonment, plus
a fine, for the mere utterance or writing of what is, or may be perceived
as, a false statement of fact—without anything more.” Id. at 1200 (emphasis in original). The key difference between Alvarez and this case is the
“anything more” element. Here, the indictment accused the defendants of
not only advocating tax evasion, but actively helping customers evade the
payment of taxes.

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reduce their tax liabilities.” Id. at 1425. The defendants were
convicted of conspiracy and tax fraud. We reversed the convictions on six of the tax fraud and conspiracy counts for
insufficient evidence, partly because “the [F]irst
[A]mendment would require a further inquiry before a criminal penalty could be enforced.” Id. at 1428. Based on the evidence presented at trial, we concluded that the exception for
incitement of imminent unlawful activity did not apply
because “[n]othing in the record indicates that the advocacy
practiced by these defendants contemplated imminent lawless
action.” Id. (emphasis in original). Dahlstrom, however, is
inapposite here because it involves the First Amendment
exception for inciting imminent lawless action. Because the
defendants here are charged with mail fraud and conspiracy
committed in part by means of speech, we instead analyze this
case under Freeman’s First Amendment exception for speech
that is integral to a crime.
[3] For each count, we must determine whether defendants
merely encouraged their customers to evade taxes, or if their
speech was integral to the crime.
2.

Counts 2 and 3 (mail fraud)

“Mail fraud has two elements: (1) having devised or intending to devise a scheme to defraud (or to perform specified
fraudulent acts), and (2) use of the mail for the purpose of
executing, or attempting to execute, the scheme (or specified
fraudulent acts).” United States v. Van Alstyne, 584 F.3d 803,
814 (9th Cir. 2009) (internal quotation marks and citations
omitted). “A participant in a scheme to defraud is liable for
acts of mail or wire fraud committed by co-schemers, provided those acts took place during the life of the scheme and
. . . were reasonably foreseeable as a necessary and natural
consequence of the fraudulent scheme.” United States v.
Green, 592 F.3d 1057, 1070 (9th Cir. 2010) (internal quotation marks omitted).

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Count 2 charged Meredith and Giordano with causing customer John Spatola to mail a 1995 Form 1040X Individual
Income Tax Return, and Count 3 charged them with causing
Spatola to mail a 1996 Form 1040 Individual Income Tax
Return.
At trial, Spatola testified that he learned of WTP and pure
trusts from co-defendant Erickson, a relative of Spatola who
assisted Meredith with seminars and book sales. Spatola testified that after he read Meredith’s book, “Vultures in Eagle’s
Clothing,” Erickson told him he could lawfully avoid paying
income taxes. After that conversation, he attended two seminars at which Meredith discussed how to avoid paying taxes.
Spatola also testified that Meredith’s book and newsletters
instructed readers to file amended tax returns to recover taxes
that he had already paid. After Erickson and co-defendant
Watts told Spatola that they filed amended returns and
received money back, Spatola pursued this strategy and filed
amended tax returns, following specific instructions from
Meredith’s books. Spatola testified that he would not have
amended his returns without these assurances from Erickson
and Watts. In July 1998, Spatola received notices from the
IRS, stating that he would be penalized for filing frivolous tax
returns. After he learned of the penalties, Spatola contacted
Erickson, who said that she was studying to become a paralegal, and offered to assist Spatola for a fee.
[4] The First Amendment does not prohibit conviction of
Meredith and Giordano on Counts 2 and 3. WTP (by way of
its owner and employees) did more than encourage Spatola to
file fraudulent amended returns. Spatola not only received
specific instructions from Meredith’s books and seminars, but
he also discussed his plans in detail with Erickson and Watts,
who were participants in the overall scheme. These discussions were integral to the crime. Although Spatola did not testify that he had one-on-one interactions with Meredith or
Giordano, they both are liable for the reasonably foreseeable
actions of their co-schemers. See Green, 592 F.3d at 1070.

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Viewing the record in the light most favorable to the prosecution, there is sufficient evidence for a rational jury to find
Meredith and Giordano guilty of Counts 2 and 3 beyond a
reasonable doubt.
3.

Count 5 (mail fraud)

Meredith and Giordano also were convicted on Count 5,
which charged them with causing WTP customer Kevin
Stambaugh to mail a “claim for release of erroneous notice of
lien/levy” protest letter.
At trial, Stambaugh testified that after hearing Meredith
discuss tax evasion on the radio, he purchased her book and
video tape. In early 1996, following the instructions in her
book, he amended his income tax returns from both 1993 and
1994 to show zero income. He also filed zero-income tax
returns for 1995 and 1996, even though he earned income in
those years. In 1997, the IRS issued a deficiency notice for
the 1995 return and penalized Stambaugh $4,334. The IRS
also disallowed his 1993 and 1994 amended returns. After
receiving these notices, Stambaugh called WTP and was
referred to Giordano. Stambaugh testified that he spoke with
Giordano six or seven times, and Giordano assured him that
he would ultimately prevail against the IRS. Beginning in
February 1997, Giordano prepared a series of letters for Stambaugh to send to the IRS, for $50 each. Among the letters that
Giordano prepared for Stambaugh was a July 28, 1997 request
for the IRS to release a levy.
[5] The First Amendment does not protect these actions.
The defendants did far more than merely encourage Stambaugh to defraud the federal government; their speech was
integral to Stambaugh’s tax evasion. Giordano explicitly
instructed Stambaugh how to avoid taxes, and she drafted letters for him to send to the IRS in furtherance of the fraud.
Giordano actively participated in the fraud. As a co-schemer
in the WTP enterprise, Meredith also is liable. See Green, 592

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F.3d at 1070. Viewing the evidence in the light most favorable to the prosecution, a rational jury could find Meredith
and Giordano guilty beyond a reasonable doubt on Count 5.
4.

Count 8 (mail fraud)

Meredith and Giordano were convicted on Count 8, which
charged them with mail fraud for causing customer Eric Bors
to mail a $595 check for the purchase of a pure trust.
At trial, Bors testified that he contacted Sovereignty Pure
Trusts — one of Meredith’s organizations — to learn about
pure trusts. Bors spoke with Meredith and co-defendant
Moore, who explained how the trusts could help him avoid
paying any taxes. Bors purchased a pure trust from Moore, as
well as books and pamphlets that provided additional instructions about avoiding income and social security taxes. Moore
advised him about setting up the pure trust, and filled out the
trust application for him. On September 29, 1997, Bors
mailed a $595 check to Sovereignty Pure Trusts in exchange
for a trust. Bors testified that he would not have purchased the
pure trust without the assurances from Meredith and Moore
that the trusts protect income from the IRS.
[6] The First Amendment does not prevent conviction on
this count because Meredith and Moore’s speech was integral
to Bors’s tax evasion. Meredith and Moore instructed Bors
how to evade taxes through a pure trust, sold the pure trust to
Bors, and helped him structure the trust to evade taxes.
Accordingly, when viewed in the light most favorable to the
prosecution, a rational jury could find Meredith and Giordano
guilty beyond a reasonable doubt of Count 8.
5.

Conspiracy (Count 1)

All three defendants were convicted of conspiracy, in violation of 18 U.S.C. § 371. The statute states:

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If two or more persons conspire either to commit any
offense against the United States, or to defraud the
United States, or any agency thereof in any manner
or for any purpose, and one or more of such persons
do any act to effect the object of the conspiracy, each
shall be fined under this title or imprisoned not more
than five years, or both.
18 U.S.C. § 371. To prove a conspiracy under the “defraud
clause” of this statute, “the government need only show (1)
[the defendant] entered into an agreement (2) to obstruct a
lawful function of the government (3) by deceitful or dishonest means and (4) at least one overt act in furtherance of the
conspiracy.” United States v. Caldwell, 989 F.2d 1056, 1059
(9th Cir. 1993).
The indictment alleged eighty-one overt acts, including the
mail fraud charges discussed above. The verdict forms did not
specify which of the overt acts formed the basis for the conspiracy convictions.
[7] As described in the previous sections, there was sufficient evidence for the jury to conclude the defendants
engaged in a conspiracy that was not protected by the First
Amendment. Numerous customers testified that the defendants helped them evade their federal and state tax obligations. Meredith was the architect of the “pure trust” scheme,
instructing her employees and customers how to evade taxes.
Meredith also trained employees to sell pure trusts. Giordano
created the pure trusts and drafted response letters to the IRS
on behalf of customers. Bybee sold pure trusts and served as
a trustee for customers. The conspiracy involved far more
than mere advocacy of tax evasion. Accordingly, there was
sufficient evidence for a rational jury to conclude that the
defendants conspired to defraud the government.
B.

False representation of a social security number

Counts 13 and 14 charge Meredith with violating 42 U.S.C.
§ 408(a)(7)(B), which criminalizes the false representation of

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“a number to be the social security account number assigned
by the Commissioner of Social Security to him or to another
person, when in fact such number is not the social security
number assigned by the Commissioner of Social Security to
him or to such other person” if that false representation is
made with intent to deceive. The false representation must be
made
for the purpose of causing an increase in any payment authorized under this subchapter [42 USCS
§§ 401 et seq.] (or any other program financed in
whole or in part from Federal funds), or for the purpose of causing a payment under this subchapter [42
USCS §§ 401 et seq.] (or any such other program) to
be made when no payment is authorized thereunder,
or for the purpose of obtaining (for himself or any
other person) any payment or any other benefit to
which he (or such other person) is not entitled, or for
the purpose of obtaining anything of value from any
person, or for any other purpose.
42 U.S.C. § 408(a)(7) (emphasis added).
The indictment alleged that on July 9, 1998, Meredith
opened two checking accounts under her name, each with a
false Social Security number.
Meredith contends that criminalizing the use of a number,
other than a Social Security number, to open a bank account
is “at odds” with the Privacy Act of 1974, Pub. L. 93-579.
That act states that it is unlawful for any government agency
“to deny to any individual any right, benefit, or privilege provided by law because of such individual’s refusal to disclose
his social security account number.” 5 U.S.C. § 552(a) (note).
This argument fails, however, because the requirement to disclose the Social Security number comes from the bank, not
from a government agency.

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[8] Meredith next asserts that 42 U.S.C. § 408(a)(7)(B) is
impermissibly vague because no statute required the use of a
social security number to open a bank account. We agree with
the First Circuit’s conclusion that Section 408(a)(7)(B) is “expansive but not at all vague” because it “emphasizes that an
intended or accomplished alteration must be purposeful and
not inadvertent.” United States v. Persichilli, 608 F.3d 34, 39
(1st Cir. 2010). Meredith cites no caselaw from this circuit or
any other court that would lead to another conclusion than
that reached in Perischilli.
Finally, Meredith contends that there is insufficient evidence to support her conviction because the government did
not call any witnesses who saw her sign the bank cards. This
argument is unavailing because her signature was on many
other documents that were introduced into evidence. See
United States v. Woodson, 526 F.2d 550, 551 (9th Cir. 1975)
(“In the absence of extreme or unusual circumstances . . . we
see no reason why handwriting comparisons cannot be made
by jurors, and conclusions drawn from them, either in the
presence or absence of expert opinion.”).
C.

Passport fraud

Count 15 charged Meredith with passport fraud, in violation of 18 U.S.C. § 1542, which criminalizes willfully and
knowingly making
any false statement in an application for passport
with intent to induce or secure the issuance of a passport under the authority of the United States, either
for his own use or the use of another, contrary to the
laws regulating the issuance of passports or the rules
prescribed pursuant to such laws.
18 U.S.C. § 1542. On January 7, 1998, Meredith applied for
a passport replacement, claiming that her passport had been
stolen in an airplane in Denver. On the passport application,

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she stated that she had not previously reported a passport lost
or stolen. In fact, she stated on a November 22, 1996 application that her previous passport had been stolen at “the Chicago airport.” Because these statements clearly contradict one
another, she lied on at least one of the applications.
[9] Meredith asserts that there was no evidence that she
willfully or knowingly made the false statement. She contends
that she merely “forgot she had made a previous request for
a replacement passport years before and inadvertently
checked the wrong box on the Form which queried whether
she had previously reported a Passport lost or stolen.” Viewing the evidence in the light most favorable to the prosecution, Meredith’s argument fails. Given the short amount of
time between the applications and the similarity between the
reasons that she asserted for her loss of passport, it is unlikely
that she did not know that she was making a false statement.
[10] Meredith next contends that there was insufficient
evidence because this error was not “material.” This argument
is unavailing because the passport fraud statute does not
require that the false statement be material. See 18 U.S.C.
§ 1542. Accordingly, we find that the evidence was sufficient
to support Meredith’s conviction for passport fraud.
II.

Use of misdemeanors as overt acts for conspiracy
count

In support of the conspiracy count, the indictment lists
eighty-one overt acts, eighteen of which involved the defendants’ failure to file income tax returns or pay taxes. Separately, in Counts 16 through 35, the indictment charges the
defendants with misdemeanor failure to file income tax
returns, in violation of 26 U.S.C. § 7203, which carries a maximum penalty of one year in prison and a $25,000 fine. The
jury found Meredith, Bybee, and Giordano guilty of the conspiracy count, but the verdict forms did not require the jury
to specify which overt acts were the basis for the conviction.

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Giordano contends that the indictment improperly alleged
that the defendants’ misdemeanor failure to file federal
income tax returns was the basis for the felony conspiracy
conviction. Giordano relies on Spies v. United States, 317
U.S. 492 (1943). In that case, the indictment contained a single count setting forth the felony charge of willful attempt to
defeat and evade income tax. Id. at 494. Willful failure to file
a return and willful failure to pay income tax are both misdemeanors, but the government contended that when the two are
combined, they constitute a felony. The Supreme Court
rejected that argument and reversed the felony conviction. Id.
at 497. Spies is inapplicable because the felony conspiracy
count here is not the same as two misdemeanors adding up to
a different felony. The felony conspiracy count is for an
agreement to obstruct a lawful function of the government,
with eighty-one overt acts underlying it. These overt acts
included misdemeanor failure to file federal income tax
returns. Spies acknowledges that “[a] felony may, and frequently does, include lesser offenses in combination either
with each other or with other elements.” Id.
[11] Giordano has not cited any other cases that would prevent misdemeanor crimes from being the overt acts that support a conspiracy conviction.2 Indeed, Giordano’s argument is
fatally flawed because she relies on the unsupported assumption that overt acts must be stand-alone felonies. We have
never imposed such a requirement, and we will not begin
now. Accordingly, we reject Giordano’s argument that the
indictment improperly included failure to file among the overt
acts in the conspiracy count.
2
The conspiracy statute states: “If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the
punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.” 18 U.S.C. § 371. However, this
only applies to the “offense” clause of the conspiracy statute, not the “defraud” clause, which is at issue here. See United States v. Tuohey, 867
F.2d 534, 538 (9th Cir. 1989).

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III.

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Jury instruction for failure to file

[12] The statute that criminalizes the failure to file income
taxes, 26 U.S.C. § 7203, states:
Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a
return, keep any records, or supply any information,
who willfully fails to pay such estimated tax or tax,
make such return, keep such records, or supply such
information, at the time or times required by law or
regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor . . .
26 U.S.C. § 7203 (emphasis added); see United States v. Brodie, 858 F.2d 492, 496 n.3 (9th Cir. 1988), overruled on other
grounds by United States v. Morales, 108 F.3d 1031 (9th Cir.
1997) (“Specific intent or willfulness is an element of a section 7203 violation.”).
In Jury Instruction No. 50, the court instructed the jury that
a conviction for failure to file income tax returns requires the
government to prove beyond a reasonable doubt:
1. First, the defendant was required by law or regulation to file a tax return concerning his or her
income for the calendar year alleged in the indictment;
2. Second, the defendant failed to file such a return
at the time required by law; and
3. Third, in failing to file the return the defendant
acted willfully for the purpose of evading his or her
duty under the tax laws and not as a result of accident or negligence.

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(emphasis added). In Jury Instruction No. 55, the court
instructed the jury that:
For the crime of willful failure to file a tax return,
the government is not required to show that a tax is
due and owing from the defendant. Nor is the government required to prove an intent to evade or
defeat any taxes.
A person is required to file a return if his or her gross
income exceeds the trigger amount for filing for the
calendar year at issue, even though the person may
be entitled to deductions, credits or offsets to that
income so that no tax is due.
The term willfully as used herein is defined elsewhere in these instructions.
(emphasis added). In Jury Instruction No. 53, the court
instructed the jury that:
By law, the payment of income taxes is not voluntary in the sense of it being optional. A person is
required to file a federal income tax return for any
calendar year in which he or she has gross income in
excess of the minimum filing requirement.
The tax laws are valid, constitutional and allow for
the direct taxation of income from whatever source
derived, including salaries, wages and profits from
business.
On appeal, Giordano asserts that the three instructions
“considered together are contradictory and confusing”
because Instruction 50 states that the government must prove
that the defendants’ failure to file income tax returns was for
the purpose of “evading his or her duty under the tax laws,”
while Instruction 55 states that the government need not prove

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“the intent to evade or defeat any taxes,” and Instruction 53
discusses the requirement to pay income taxes and file a tax
return.
[13] The government correctly responds that the court’s
instructions reflect the law and are not contradictory. Jury
Instruction 55 does not state that the government is not
required to prove willfulness. Instead, that instruction states
that willfully “is defined elsewhere in these instructions,” and
Jury Instruction 52 defines willfully as an act “done voluntarily and intentionally and with the specific intent to do something the law forbids; that is to say with a purpose either to
disobey or disregard the law.” This definition of willfulness
tracks our precedent. See United States v. Wilson, 631 F.2d
118, 119 (9th Cir. 1980) (“Willfulness requires a specific
intent to do something the law forbids; a general intent to
commit the proscribed act is not enough.”).
[14] Jury Instruction 55 correctly states that the government is not “required to prove an intent to evade or defeat any
taxes.” Intent to evade or defeat taxes is merely one possible
way to establish willfulness. Any voluntary act committed
with the specific intent to disobey or disregard the law qualifies as willfullness. See United States v. Mousavi, 604 F.3d
1084, 1092 (9th Cir. 2010) (“In the context of criminal statutes, the word ‘willful’ generally indicates a requirement of
specific intent.”). Moreover, Giordano cites no authority that
requires us to reverse a verdict because a jury instruction was
“contradictory and confusing.” Accordingly, the district
court’s instructions regarding failure to file did not constitute
an abuse of discretion.
IV.

Restitution

Giordano and Meredith challenge their restitution orders,
which are based on the amount of money that the federal and
state governments lost because of their illegal activities.

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A.

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Giordano

The district court ordered Giordano to pay a total of
$292,422.97 in restitution ($199,606.12 to the IRS, and
$92,816.85 to California). The court based its calculation on
calculations of Giordano’s gross income from the IRS and
Probation Office, and the resulting tax losses to the state and
federal governments.
In her sentencing position paper, Giordano offered a declaration from a “tax resolution specialist,” attesting that he filed
Giordano’s tax returns from 1994 through 2004, and that “the
full tax liability with penalties and interest will not be know
(sic) until all returns are assessed.” The court failed to consider this evidence in its restitution calculation, and instead
relied solely on the information provided by the Probation
Office.
[15] The government concedes that Giordano’s restitution
order should be vacated for a recalculation of the proper
amount. See United States v. Najjor, 255 F.3d 979, 985 (9th
Cir. 2001) (requiring the district court to “consider all the evidence pertaining to the restitution order and make an independent determination of the [victim’s] actual loss”).
Accordingly, we vacate Giordano’s restitution order and order
the district court to recalculate the correct amount, considering the information that Giordano provided.
B.

Meredith

Meredith raises various challenges to her restitution order.
None of them require us to vacate her restitution order.
First, Meredith claims that the requirements to pay both
back taxes and restitution constitutes “unlawful ‘double
recovery.’ ” Meredith cites no authority for this argument.
Moreover, the court’s judgment explicitly provides that any

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restitution payments are credited toward Meredith’s back tax
obligations.
Next, Meredith claims that the restitution order is “impermissibly based on ‘relevant conduct’ rather than based on the
amounts for the years of conviction, charged in the indictment.” Meredith cites no support for this argument. Indeed,
we have held that restitution orders can include losses caused
by related conduct for which the defendant was not convicted.
See United States v. Brock-Davis, 504 F.3d 991, 998-99 (9th
Cir. 2007).
[16] Meredith also contends that her restitution orders
should be vacated because the Mandatory Victims Restitution
Act (MVRA), 18 U.S.C. § 3663A, does not apply to Title 26
income tax-related offenses. Meredith is correct that the
MVRA does not apply to Title 26 income tax offenses, but it
does apply the Section 371 conspiracy offenses. See United
States v. Kubick, 205 F.3d 1117, 1128-29 (9th Cir. 1999).
Accordingly, this challenge fails.
CONCLUSION
For the foregoing reasons, and those stated in the accompanying memorandum disposition, the convictions and the sentences for Meredith, Giordano, and Bybee are affirmed, with
the exception of Giordano’s restitution order, which is
vacated and remanded for recalculation.
AFFIRMED in part
REMANDED in part.

and

VACATED

AND