Professional Documents
Culture Documents
Filed: United States Court of Appeals Tenth Circuit United States Court of Appeals Tenth Circuit
Filed: United States Court of Appeals Tenth Circuit United States Court of Appeals Tenth Circuit
v.
STANLEY LEO W AD E,
Defendant - Appellant.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The H onorable C. Arlen Beam, Senior Circuit Judge, United States C ourt
of Appeals for the Eighth Circuit, sitting by designation.
***
After examining the briefs and the appellate record, this three-judge
panel has decided unanimously to honor the request of the parties to proceed
without oral argument. The cause is therefore ordered submitted without oral
argument.
several evidentiary rulings, that it improperly instructed the jury, that it permitted
the government to make prejudicial arguments in its closing, and that it did not
give his attorney a sufficient opportunity to argue mitigation at sentencing. Our
jurisdiction arises under 28 U.S.C. 1291, and we affirm.
Background
M r. W ade and his wife, Janet, were charged in a nine-count indictment.
Count 1 alleged that the W ades conspired to defraud the IRS by transferring
ownership of various apartment complexes into sham entities called
Unincorporated Business Organizations (UBOs or business trusts) and not
reporting the income from them. The indictment alleged that the complexes
generated gross rental receipts in excess of $7 million, taxable income of $4
million, and a tax liability of over $1.5 million. The W ades were accused of
conspiring to hide ownership of the complexes not only to conceal income and
evade tax, but also to conceal a source of payment of an outstanding tax liability
from 1982-84 in excess of $1 million. Count 1 also alleged that the W ades
conspired to file for bankruptcy fraudulently, with M r. W ade representing that he
had no real property assets. Counts 2-5 charged the W ades with evasion of
assessment for tax years 1997-99 and evasion of payment for 1982-84 in violation
of 26 U.S.C. 7201 and 18 U.S.C. 2. Count 6 alleged that M r. W ade
comm itted bankruptcy fraud in violation of 18 U.S.C. 157, and count 8 charged
-2-
Discussion
1.
The law governing the waiver of the attorney-client privilege provides that
[t]he attorney-client privilege is lost if the client discloses the substance of an
otherwise privileged communication to a third party. United States v. Ryans,
903 F.2d 731, 741 n.13 (10th Cir. 1990). M r. W ade contends that he did not
waive the privilege by disclosing the letter to M r. Powell because Powell
testified that he played an important role in the Defendants business and that
Defendant gave him a copy of the opinion letter as a part of his work. A plt. Br.
at 3. He further contends that M r. Pow ell was present during discussions with the
attorney and had been instructed to communicate with the attorney about the
UBOs. Aplt. Br. at 11. M r. W ade relies upon Diversified Indus., Inc. v.
M eredith, 572 F.2d 596, 610 (8th Cir. 1977), which addressed the extent to which
a corporate employees communications with counsel are protected by the
attorney-client privilege.
W e have noted that the attorney-client privilege facilitates the clients need
for advice and the attorneys need for complete information in rendering that
advice. In re Q west Commcns, Intl, Inc., 450 F.3d 1179, 1185 (10th Cir.
2006). Here, the clients were M r. and M rs. W ade, and the opinion letter was
not review a decision, even for plain error, where the relevant portions of the
transcript of the trial proceedings are not part of the record on appeal. United
States v. Davis, 60 F.3d 1479, 1481 (10th Cir. 1995). Here, however, we elect to
review it because the materials provided by the government provide a sufficient
basis on which to decide the issue.
-5-
drafted at M rs. W ades urging. M r. Powell and M r. Passey both testified that M r.
W ade talked with them about the U BOs and how he could avoid paying taxes. III
Aplee. Supp. App. at 452, 474. Even were we to accept that M r. Pow ell assisted
M r. W ade in his ventures and that M r. Pow ells role included assisting M r. W ade
in obtaining legal advice, M r. W ade does not address the fact that he also
disclosed the letter to his nephew, M r. Passey. See Aplt. Br. at 3 (claiming that
the letter was reviewed only by W ade, Janet and Powell) (emphasis added); see
also III Aplee. Supp. App. at 491 (district courts remarking that parties agreed
letter was disclosed to M r. Pow ell and M r. Passey). This constitutes an
independent ground to uphold the district courts ruling, and it is well supported
by the record. M r. Passey testified that anytime M r. W ade met with his attorneys,
he w anted a witness. III Aplee. Supp. App. at 454. M r. Passeys role as a
witness, however, had nothing to do with facilitating attorney-client
comm unications about the UBOs. Id. at 454-55. Thus, M r. W ades disclosure of
the letter in the process of venting about the quality of the advice he received
(and its expense) had no connection with any responsibilities M r. Passey had to
the W ades individually.
2.
recounted M rs. W ades concerns about whether the W ades could afford to pay
their taxes and whether the UBOs w ould protect them from tax liability. Aplt.
App. at 62-64. The gist of the statements M rs. W ade made in M r. Haneys
presence was you are going to get me put in jail over this. Id. at 51-52.
M r. W ade objected to the use of these statements, arguing that they were
hearsay and privileged marital communications. The district court held a hearing
in which it found that the government had established that the W ades w ere
involved in a conspiracy, making M rs. W ades statements non-hearsay under Rule
801(d)(2)(E), Fed. R. Evid. 2 I Aplee. Supp. App. at 76-92. However, the
government represented that it only intended to offer statements made in the
presence of others, w hich would not be covered by the marital privilege. Aplt.
App. at 46. The court granted M r. W ades motion to exclude any privileged
spousal communications without addressing the admissibility of statements made
in the presence of third parties. See id. at 85.
M r. W ade now claims that the government did, in fact, offer privileged
2
statements and the district court failed to exclude them. The government
maintains that M r. W ade failed to object and our review should be for plain error.
See United States v. Ambort, 405 F.3d 1109, 1115 (10th Cir. 2005). Given a
proper objection, a trial courts decision not to apply the marital privilege is an
evidentiary ruling reviewed for an abuse of discretion. See United States v.
Leonard, 439 F.3d 648, 650 (10th Cir. 2006). W hether we review this under the
plain error standard or for an abuse of discretion, the outcome is the same.
Federal courts recognize two marital privileges: the first is the testimonial
privilege which permits one spouse to decline to testify against the other during
marriage; the second is the marital confidential communications privilege, which
either spouse may assert to prevent the other from testifying to confidential
comm unications made during marriage. United States v. Jarvison, 409 F.3d
1221, 1231 (10th Cir. 2005). Here, M r. W ade argues that the second privilege
allows him to prevent his wifes de facto testimony through third party witnesses.
He cites no authority for the idea that the marital privilege can keep a third party
from testifying about statements made by one spouse to another. However, we
need not decide whether M rs. W ades statements could be covered by the marital
privilege, because even if they were eligible, the privilege would not apply in this
case.
In Pereira v. United States, the Supreme Court held that [a]lthough marital
comm unications are presumed to be confidential, that presumption may be
-8-
overcome by proof of facts showing that they were not intended to be private.
347 U.S. 1, 6 (1954). Specifically, [t]he presence of a third party negatives the
presumption of privacy. Id. Here, the statements by M rs. W ade were uttered
aloud, often during confrontations between M r. and M rs. W ade, in the presence of
M r. Passey and M r. Haney. W e find no error in the admission of the statements,
plain or otherwise.
3.
about statements made by M rs. W ade and Richard K ennedy, an IRS lawyer,
because they were not subject to cross-examination. In addition to recounting the
aforementioned statements made by M rs. W ade, M r. Passey testified that he told
M r. W ade about a conversation he had with M r. Kennedy. M r. W ades counsel
objected on hearsay and relevance grounds, but the court allowed the testimony as
evidence of notice. According to M r. Passey, he told M r. W ade that:
I said, Richard, have you ever seen a UBO be used for tax benefit
purposes, ever. He says no, Ive never seen it, Adam. Ive
prosecuted and dealt with approximately 65 of these. Every single
time they are used for income tax savings and that type of thing, they
are always blown away. They never prevail. They are never
successful.
Aplt. App. at 60.
Because M r. W ade did not raise his Confrontation Clause objections at
trial, our review is for plain error. United States v. Crockett, 435 F.3d 1305, 1311
-9-
(10th Cir. 2006); see also United States v. Gomez, 67 F.3d 1515, 1524 (10th Cir.
1995) ([T]he failure to object to the admissibility of evidence is a waiver absent
plain error.). Under this standard, we look for (1) an error (2) that is plain and
(3) that affected substantial rights; we will reverse only if the error affected the
outcome of the district court proceedings. United States v. Olano, 507 U.S. 725,
732-34 (1993).
In Crawford v. W ashington, the Supreme Court held that the Sixth
Amendment requires a trial court to exclude hearsay that is testimonial in
nature when the defendant has not had the opportunity to cross-examine the
declarant. 541 U.S. 36, 68 (2004). The Court did not precisely define testimonial
in Crawford, but it indicated in Davis v. W ashington that a statement is
testimonial if the the circumstances objectively indicate . . . that the primary
purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution. 126 S. Ct. 2266, 2273-74 (2006); see also
United States v. Summers, 414 F.3d 1287, 1302 (10th Cir. 2005) ([A] statement
is testimonial if a reasonable person in the position of the declarant would
objectively foresee that his statement might be used in the investigation or
prosecution of a crime.).
Neither M rs. W ades nor M r. Kennedys statements qualify as testimonial
under this definition of the term. M rs. W ade said she was w orried about going to
jail, w orried about paying the taxes, and worried about going into bankruptcy.
- 10 -
for the truth of whether M r. Kennedy had actually never seen a successful attempt
to use a UBO to shield income; it was offered to show that M r. W ade w as aware
that he should have reported income from the U BOs but that he willfully chose
not to do so. Both witnesses statements were offered to prove notice, and, as
such, their use did not implicate the Confrontation Clause.
In short, we conclude that these statements were non-testimonial, and thus
it was not error, plain or otherwise, to admit them.
4.
M r. W ades A ffidavit
M r. W ade argues that the district court erred in admitting an affidavit he
signed in connection with a state court lawsuit that was litigated shortly before
his criminal trial began. In this affidavit, the W ades and their two sons affirmed
that they or certain trusts or business entities legally or equitably owned by
them ow ned the properties held by one of the UBOs at issue here. Aplt. App. at
191.
M r. W ade objected to the affidavit, arguing that it lacked an adequate
foundation and was unduly prejudicial because it was confusing. Id. at 183. To
authenticate the affidavit, the government was prepared to call John M ullen, an
attorney who represented the opposing party in the W ades lawsuit. The parties
presented a stipulated proffer of M r. M ullens testimony, which described the
nature of the law suit and identified the affidavit as the one that the W ade family
filed. Id. at 188-89. Following the proffer, the court asked if the stipulation
- 12 -
the bankruptcy fraud charges, it was probative of whether the income from the
entities M r. W ade claimed to own should have been included on his tax returns.
On the other hand, M r. W ade argues that the affidavit was prejudicial because it
was signed as the statement of all four members of the W ade family, not M r.
W ade alone, and that it could have been confusing because it required the parties
to educate the jury about the facts and claims in the state court civil suit. W ithout
doubt, these are valid concerns. However, given that the affidavit went to the
heart of several of the charges against M r. W ade and was a recent sworn
statement signed by him, we cannot say that the danger for prejudice substantially
outweighed its probative value. M r. W ade had an opportunity to explain the
circumstances of the affidavit to the jury. Aplt. App. at 255-56. The district
court did not abuse its discretion in admitting it.
5.
M r. Hunters Testimony
In his defense, M r. W ade called Daniel Hunter, an attorney and CPA who
began representing him in 1998. M r. W ade now argues that the district court
erred in three rulings limiting M r. Hunters testimony. W e review the decision to
admit or exclude evidence for an abuse of discretion. Leonard, 439 F.3d at 650.
(a) M r. Hunters 1998 Advice to M r. W ade
M r. W ades attorney questioned M r. Hunter about discussions he had with
M r. W ade concerning tax shielding. See Aplt. App. at 201-02. The government
objected that the conversations w ere irrelevant because the UBOs w ere created in
- 14 -
1992, six years before M r. Hunter began representing M r. W ade. The district
court sustained the objection, and M r. W ades counsel made the following
proffer: This advice was given before the filing of the bankruptcy and it would
have an effect on conduct the government here charges to be criminal[:] . . . his
state of mind at that time. Id. at 201. The court replied: For that limited
purpose, Ill allow you to continue. Id.
M r. W ade now argues that the district court abused its discretion in limiting
M r. Hunters testimony. However, the district court admitted the testimony for
precisely the reason his attorney claimed to be offering it. M r. W ades brief does
not explain why this limitation was an error or how else the testimony could have
been used. He also fails to explain how the limitation was prejudicial. W e
believe that the limitation was entirely reasonable in light of the proffer made by
M r. W ades counsel, and we consequently find no abuse of discretion.
(b) M r. Hunters Opinion of M r. W ades Level of Sophistication
M r. W ade next argues that the court erred in preventing M r. Hunter from
giving his opinion of M r. W ades level of sophistication in the area of grantor
trusts. Under Rule 701, a lay witnesss testimony in the form of opinions . . . is
limited to those opinions . . . which are (a) rationally based on the perception of
the witness, [and] (b) helpful to a clear understanding of the witness testimony or
the determination of a fact in issue . . . . Fed. R. Evid. 701. The government
contends that M r. Hunters opinion was inadmissible under Rule 701(b) because it
- 15 -
was not helpful in understanding his testimony. 3 M r. Hunter had already testified
that the grantor trust rules in relation to revocable and irrevocable trusts are so
complicated that an ordinary layperson (and even an attorney or CPA without
experience) would not understand them upon reading them. See Aplt. App. at
203-04. W e agree that M r. Hunters opinion of M r. W ade would have added little
to clarify those statements; the jury could apply M r. Hunters testimony to M r.
W ade and reach its own conclusion. The district court did not abuse its
discretion.
(c) M r. Hunters Attempts to Settle M r. W ades Tax Debt W ith the IRS
M r. W ade contends that the court erred in excluding testimony by M r.
H unter and himself concerning attempts to settle his tax debt with the IRS. H e
argues that:
Wade would have testified that the IRS w as not interested in settling,
that he intended to make a $2 million tax payment, and that he was
willing to cooperate with a diversion agreement. All of this was
relevant and admissible regarding Defendants state of mind and
willfulness as to all charges.
Aplt. Br. at 22 (emphasis added). Significantly, M r. Wade offers no arguments
about what M r. Hunter would have said or how that would have been relevant and
admissible. M oreover, we fail to see how the attempts to settle the tax debt after
the charged offenses are relevant to his conduct beforehand. W e find no error.
6.
M r. Robertss Testimony
M r. W ade next argues that the district court improperly permitted Steven
- 17 -
about the tax treatment of certain transferred assets, and it concluded that,
although the admission of other testimony (that a defendant intentionally
understated his income and was well aware of what happened to other assets) was
error, the error was harmless given overwhelming evidence of guilt. 790 F.2d
576, 582 (7th Cir. 1986). The court held, and we agree, that a properly qualified
IRS agent may analyze a transaction and give expert testimony about its tax
consequences but may not express an opinion about the defendants state of mind
at the time of the transaction. Id. at 581-82; see also United States v.
M ikutowicz, 365 F.3d 65, 72 (1st Cir. 2004). Some of that testimony necessarily
will include the agents understanding of the applicable law as a backdrop to
explaining how the government analyzed the transaction.
In light of these considerations, we conclude that the district court did not
err in allow ing M r. Robertss testimony. Although he reached legal conclusions,
he did so only after explaining his understanding of the relevant law and then
applying the facts as he understood them. His conclusions were presented as
opinions rather than unquestionable facts. M r. Roberts was cross-examined about
the bases for his conclusions, and the trial court gave specific instructions that his
testimony was expert opinion and that it was up to the jurors whether they wanted
to credit all of it, none of it, or parts of it. III Aplee. Supp. App. at 417, 422-23.
M r. W ade also objects to the substance of M r. Roberts testimony,
contending that parts of it were inaccurate or incomplete. M r. Roberts necessarily
- 20 -
testified about entity taxation and transactions that have economic substance. H e
explained in laymans terms that the income from the UBOs must be reported
somewhere, asserting his primary position that the UBO was an association or
proprietorship and that the income should have been reported on the W ades
personal returns. IV Aplee. Supp. App. at 518. He further testified that his
secondary position was that the businesses were grantor trusts, and that such
trusts could file as corporations, partnerships, or proprietorships, depending upon
the circumstances. Id. at 517. Although M r. W ade argues that M r. Roberts took
too limited a view, failing to acknowledge the possibility of corporate filing
status, this is really beside the point: M r. Wade did not elect corporate status and
never filed corporate tax returns for the UBOs.
M r. W ade also argues that M r. Roberts spoke incorrectly when he indicated
that a trust will be deemed a grantor trust if the grantor retains control or
ownership. Although the testimony might not cover every situation, M r.
Roberts was using lay terms against the backdrop of what occurred here to refer
to the power to control the disposition of the beneficial enjoyment of the corpus
or the income therefrom under I.R.C. 674(a). See Aplt. App. at 103 (Q: W hat
attributes of ownership would you be talking about there? A: Being able to
receive the income and determine what happens to it. Being able to . . . do
whatever they want with the property . . . .).
Finally, M r. W ade argues that M r. Robertss definition of a sham w as
- 21 -
- 23 -
counsel stated: I would like this charge in order to make . . . clear to the jury
that just aggressive conduct by itself is not sufficient with respect to the act of
taking a tax position itself. IV Aplee. Supp. App. at 649. The court sustained
the governments objection, explaining:
I believe that it would be extremely confusing to the jury. I believe
it states a position on the law that the Court is not convinced is the
law, maybe IRS practice, but that does not constitute the law. I think
you have every opportunity in closing to make your point about M r.
Haneys role. . . . An instruction of a sort contemplated by No. 37
would add nothing to the jurys understanding that would help them
make the decision that they have to make.
Id. at 652.
W e review for abuse of discretion a district courts refusal to give a
particular instruction. In doing so, we also consider the instructions as a whole de
novo to determine whether they accurately informed the jury of the governing
law. United States v. Serrata, 425 F.3d 886, 898 (10th Cir. 2005) (quoting
Bangert Bros. Const. Co. v. Kiewit W . Co., 310 F.3d 1278, 1287 (10th Cir.
2002)). W e agree with the district court that the instructionattempting to define
negligence that might result in penalties for a tax return preparer not charged with
any wrongdoing and negligence that might result in a penalty for a taxpayer,
I.R.C. 6662, 6694was confusing and only minimally relevant to the criminal
charges in this case. Here, the jury was adequately instructed that M r. W ades
conduct is not willful if you find that he failed to pay his income taxes because
Aplt. A pp. at 225-226.
- 24 -
- 26 -
Id. at 188. Thus, the court did not abuse its discretion in overruling the objection.
M r. W ades attorney also made two objections that were sustained during
the closing. The first followed this argument by government:
M embers of the jury, I think its important probably here for just a
minute to talk about the very brief context we have for this [state
court civil] suit. Do you see what happened? A s it was recited in the
proffer, M r. W ade appointed a man named D on Taylor to act as
trustee for W ade M anagement UBO. Then a horrible thing happened
to M r. Wade, M r. D on Taylor started to act like a real trustee. He
started to worry about the rents.
Id. at 293-94. W hen M r. W ades counsel objected on the grounds of hearsay and
lack of evidence, the court sustained the objection. Id. at 294.
Later, the government turned its attention to M r. Haney, M r. W ades
accountant. It stated:
[I]f you just think about the facts surrounding [M r. Haney], and you
saw him, I mean he doesntyou can make your own judgments about
him, but he operates out of his house. He doesnt have a big office
like M r. Steorts or M r. Black. He is in deep trouble. W hy is he in
deep trouble? Because hes fresh out of jail and M r. W ade
Id. at 299. M r. W ades attorney again objected, and the court sustained the
objection because [t]here is no evidence about him being in trouble . . . . 6 Id.
M r. W ades attorney did not object to the other snippets of testimony that
M r. W ade raises in this appeal. He claims that the statement M r. W ade cant
take it because he cannot have that sham treated as real w as prejudicial. Aplt.
6
M r. W ades Sentencing
Finally, M r. Wade asserts that his attorney was not given enough time to
present his sentencing arguments to the district court. Rule 32(I) requires that the
sentencing court must provide the defendants attorney an opportunity to speak
on the defendants behalf . . . [and] permit the defendant to speak or present any
information to mitigate the sentence . . . . Fed. R. Crim. P. 32(i)(4)(A). Here,
the district court allowed both M r. W ade and his attorney, Randall Gaither, to
speak. M r. W ade contends that the district court violated Rule 32 by stopping
M r. Gaither after an hour and a half of argument and then denying his motion to
allow more time to address the court or to continue the hearing. He argues that
most of the first hour and a half was spent making objections to the presentence
report (PSR) as permitted by Rule 32(i)(1)(C) and that the ten minutes allowed
for the downward departure motion was insufficient under Rule 32(i)(4)(A). See
Aplt. Reply Br. at 15.
- 29 -
- 32 -