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United States v. Toto-Ngosso, 4th Cir. (2011)
United States v. Toto-Ngosso, 4th Cir. (2011)
United States v. Toto-Ngosso, 4th Cir. (2011)
No. 09-5153
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:08cr-00179-RWT-1)
Submitted:
Decided:
PER CURIAM:
Marcel
J.
Toto-Ngosso
(Toto)
appeals
his
jury
preparation
indictment
and
of
income
erred
in
tax
the
returns
not
calculation
charged
of
his
in
the
Guidelines
in
Fed. R.
order
Evid.
admissible
for
to
show
404(b).
other
action
Such
in
conformity
evidence
purposes,
such
as
may,
therewith.
however,
proof
of
be
motive,
Id.
To be admissible under
United States
v. Siegel, 536 F.3d 306, 317 (4th Cir. 2008) (internal quotation
marks
omitted).
Evidence
sought
to
be
admitted
under
Rule
Id. at 319.
invariably
will
be
prejudicial
to
the
defense.
United States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998).
At trial, the Government presented testimony to show
that Toto was a tax preparer who prepared federal income tax
returns for clients at his Maryland residences.
Six of Totos
and
their
testimony
showed
that
the
returns
Toto
and
other
qualifying
persons
and
exaggerated
or
Additionally, over
clients
of
Totos
that
the
income
tax
returns
he
claims
that,
because
the
Government
presented
charged
concerning
unnecessary.
in
the
returns
indictment,
not
charged
admission
in
the
of
the
testimony
indictment
was
United
States v. Queen, 132 F.3d 991, 998 (4th Cir. 1997) (internal
quotation marks and citation omitted).
See 26
U.S.C.
is
7206(2).
tax
violation
is
willful
if
it
can
establish
willful
violation
without
proving
that
Toto
had
prepared
several
additional
returns
thus
significantly
aided
the
Government
in
meeting
its
case
does
not
render
it
unnecessary
for
This is so
at
trial,
false
returns
and
evidence
provided
of
context
Totos
for
preparation
the
of
preparation
other
of
the
Accordingly, the
further
concerning
suggests
his
that
preparation
the
of
admission
the
tax
of
the
returns
not
Although
the
probative
value
of
the
testimony,
United
States
v.
997.
abuse
its
discretion
in
admitting
the
challenged
evidence.
See United States v. Benkahla, 530 F.3d 300, 309 (4th Cir. 2008)
(stating standard of review).
Toto
sentence,
also
asserting
challenges
that
the
his
seventy-month
district
court
erred
prison
in
the
objections
and:
(1)
calculating
the
tax
loss
amount
and
sophisticated
means;
and
(3)
applying
the
three-level
review
deferential
Totos
sentence
for
abuse-of-discretion
standard.
must
ensure
that
the
reasonableness
district
under
Gall
v.
United
correctly
calculated
resulting
or
from
the
advice.
defendants
USSG
aid,
2T1.4(a).
assistance,
Under
USSG
This
consider
relevant
information
without
regard
to
its
that
the
information
has
sufficient
indicia
of
United States v.
Mehta, 594 F.3d 277, 282 (4th Cir.), cert. denied, 131 S. Ct.
279 (2010) (internal quotation marks omitted).
Additionally,
Guidelines
will . . . make
facts.
contemplate
a
reasonable
that
the
estimate
[district]
based
on
the
court
available
We review the
See United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007).
The
practice
of
testimony
listing
at
false
trial
established
deductions,
that
qualifying
Totos
persons,
$117,711.
According
to
the
presentence
report,
Totos
At sentencing,
of
interviews
with
testify at trial.
number
of
Totos
clients
who
did
not
on
their
returns.
Based
on
these
adjustments,
the
agent recalculated each clients amount of tax due and owing and
thereby determined the additional tax loss amount resulting from
Totos
conduct.
The
district
court
adopted
the
presentence
report, credited the agents testimony, and found that the tax
loss amount attributable to Toto exceeded $200,000, resulting
in
base
offense
level
of
18,
see
USSG
2T1.4(a)(1),
2T4.1(G).
Toto claims that, because the clients whose interviews
were the subjects of the memoranda were not cross-examined, the
evidence
the
Government
proffered
at
sentencing
to
establish
We
clients who did not testify at trial fit the pattern of the
fraudulent conduct established at trial, and the $98,785 loss
amount was based on statements made by the clients themselves
establishing the falsity of the deductions Toto had claimed on
their returns.
though
assessments
they
and
never
substantively
where
the
agree[d]
fraudulent
with
deductions
those
on
the
We
therefore conclude that the district court did not commit clear
error in calculating the tax loss amount.
We
courts
turn
next
application
to
of
the
Totos
challenge
two-level
to
the
enhancement
district
under
USSG
The average
criminal
concealment;
tax
fraud . . . involves
some
under
USSG
2T1.4(b)(2)]. . . require[s]
more.
United States v. Kontny, 238 F.3d 815, 820-21 (7th Cir. 2001).
Sophistication, however, does not refer to the style of the
[defendant]the degree to which he approximates Cary Grantbut
to the presence of efforts at concealment that go beyond (not
necessarily far beyond . . . ) the concealment inherent in tax
fraud.
such
as
hiding
assets
or
transactions,
or
offshore
financial
sophisticated means.
offered
as
examples
accounts
ordinarily
the
essence
of
the
indicates
is
detect.
ellipsis omitted).
district
court
adopted
the
See id.
presentence
reports
Totos:
registered
(1)
to
use
of
an
another
IRS-issued
entity
to
electronic
file
his
filing
clients
In Totos
filed
under
the
electronic
filing
number
of
another
disagree,
because
Totos
conduct
shows
he
took
returns
the
he
filed
electronic
on
behalf
of
his
clients.
filing
number
registered
to
By
another
entity, Toto could omit his name and signature from the returns
and associated forms, thus perpetuating the fiction that he was
not the preparer of those returns.
argument . . . must
contentions
and
the
authorities
and
parts
reasons
of
for
the
them,
record
Ctr.,
Inc.,
562
F.3d
contain . . . appellant's
with
on
citations
which
the
to
the
appellant
599,
607
(4th
Cir.
2009),
cert.
therefore
the
district
courts
amended
contentions
the
affirm
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED
11