Brailey v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Alston and Senior Judge Clements
Argued at Richmond, Virginia

WILLIS ALFRED BRAILEY
OPINION BY
v. Record No. 2353-08-2 JUDGE ROSSIE D. ALSTON, JR.
DECEMBER 22, 2009
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY
L.A. Harris, Jr., Judge

David B. Hargett (Hargett Law, PLC, on brief), for appellant.

Eugene Murphy, Senior Assistant Attorney General (William C.
Mims, Attorney General, on brief), for appellee.

Willis Alfred Brailey (appellant) appeals his convictions of eight counts of preparing a false

tax return, in violation of Code § 58.1-348.1. 1 Appellant first contends the trial court abused its

discretion in denying his motion for a continuance to obtain new counsel. Appellant further

contends the evidence was insufficient to support his convictions of preparing false tax returns. For

the reasons stated, we affirm the convictions.

BACKGROUND

On appeal, we view the evidence and all reasonable inferences flowing therefrom in the

light most favorable to the prevailing party in the trial court. Commonwealth v. Hudson, 265 Va.

1
Code § 58.1-348.1 provides,

Any income tax preparer, as defined in [Code] § 58.1-302, who
knowingly and willfully aids or assists in, counsels or advises the
preparation or presentation of a return, affidavit, claim or other
document required by this chapter that he knows is fraudulent or
false as to any material matter, is guilty of a Class 6 felony.
505, 514, 578 S.E.2d 781, 786 (2003). So viewed, the evidence established that from June 1989 to

November 2000, appellant worked for the Virginia Department of Taxation (Department) as a tax

collections representative. Appellant’s job was to ensure compliance and the proper resolution of

delinquent tax liabilities, and in doing so, to review state tax returns.

After leaving his job with the Department, appellant began preparing tax returns for

individuals. In 2005 and 2006, appellant prepared federal and state tax returns for several

individuals, including Keith W. (Keith), Crystal W. (Crystal), Terrence W. (Terrence), Devon J.

(Devon), Keith B. (Keith B.), Kareem M. (Kareem), and James K. (James).

In early 2006, Keith contacted appellant about preparing Keith’s 2005 tax returns.

Appellant agreed to prepare the returns in exchange for $200 in cash. Keith told appellant that he

was married, that he was a truck driver, and that he made charitable contributions in the amount of

$500. He provided appellant with his W-2 form, but did not give appellant any other information.

Appellant also spoke to Crystal, Keith’s wife. She told appellant that she was married but wanted to

file her taxes as head of household. Appellant prepared the returns. He filed Keith’s and Crystal’s

state tax returns separately, indicating on each return that the individual was single. Keith’s return

included itemized deductions for mileage and charitable contributions. Crystal’s deductions were

not itemized. The Department determined that both returns were improperly prepared because

married couples may not file under single status and one spouse may not itemize deductions, while

the other does not. The Department disallowed Keith’s mileage deduction and a portion of his

charitable contributions. After proper calculation, the Department determined that Keith owed an

additional $1,235. Crystal owed an additional $159.

In March 2006, appellant prepared Terrence’s 2005 tax returns in exchange for $350 in

cash. Appellant asked for Terrence’s birth date, his wife’s birth date, and the make, model, and year

of his car. Terrence gave him this information, along with his W-2 form, his mortgage forms, and

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receipts from church donations. Terrence supplied no other information, and appellant prepared the

returns. Terrence’s state tax return included itemized deductions of $49,389, including business

operating expenses, business losses, and mileage deductions, none of which Terrence supplied to

appellant. The Department disallowed a substantial portion of Terrence’s deductions and

determined that he owed an additional $928.

In February 2006 and 2007, appellant prepared Devon’s tax returns in exchange for $325 in

cash. Devon told appellant that he drove his company truck approximately 2000-2500 miles per

week. Devon also gave appellant his W-2 form, but provided appellant with no other information.

Devon waited while appellant prepared his return. Devon’s state return included approximately

$30,000 in deductions, including $18,000 in mileage deductions. Devon’s return included starting

and ending mileage numbers for his company truck, which Devon never supplied to appellant and

which were incorrect. The Department disallowed Devon’s mileage deductions and determined that

he owed an additional $1,382 for 2005 and $1,392 for 2006.

In February 2006, appellant prepared Keith B.’s 2005 tax returns for $350 in cash. Keith B.

gave appellant his W-2 form and his statement of mortgage interest, but he did not provide appellant

with any other information. Keith B. waited while appellant prepared his return. Keith B.’s 2005

state return showed $17,368 in itemized deductions, including business mileage. The Department

disallowed most of Keith B.’s deductions, including those for business mileage, and determined that

his adjusted gross income was $35,087, rather than $28,213, as indicated on the return.

Accordingly, the Department determined Keith B.’s income should have been calculated in a higher

tax bracket, resulting in a lower refund amount.

In early 2006, appellant prepared Kareem’s 2005 returns. Appellant told Kareem that he

could “write off” lunches and other business expenses because Kareem was a salesman. Although

Kareem did not supply appellant with any information other than his W-2 form, Kareem’s state

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return included $16,000 in deductions, including business mileage. The Department disallowed

Kareem’s deductions and determined that he owed an additional $768.

In February 2006, appellant prepared James’s 2005 returns for $300 in cash. James

provided appellant with his W-2 form, a lottery receipt showing $2,600 in winnings, and a mileage

certificate showing 90,000 miles driven on James’s company truck in 2005. James’s state return

included $38,985 in unreimbursed business expenses, including mileage deductions. The

Department disallowed James’s deductions and determined that he owed an additional $1,627.

In each case, appellant filled out all the information on the returns, but had the individual

sign the return as “preparer.” In some cases, the individuals admitted that they were shocked or

surprised by the amount of their return or that they didn’t know where the numbers on the returns

came from. However, each individual signed the return. A search of appellant’s home computer

revealed numerous copies of tax returns, including the returns for most of the above-named

individuals.

In November 2007, appellant was indicted on thirteen counts of preparing false tax returns,

in violation of Code § 58.1-348.1. At the start of trial, the Commonwealth moved to nolle prosequi

one count. Appellant then requested a continuance to obtain new counsel. Both appellant and

his trial counsel agreed there were problems “beyond the normal realm of navigation” and that

the two did “not see eye to eye.” Defense counsel requested an in camera discussion to avoid

alerting the prosecutor to the reasons for new counsel. This request was accommodated, and

counsel met with the trial judge outside the presence of the prosecutor and off the record, and

explained the reasons for appellant’s motion. After the in camera discussion, the trial court

denied appellant’s motion, noting for the record, that the Commonwealth had fourteen witnesses

present, some from out of town, the case was previously continued on appellant’s motion, and

defense counsel said he was prepared to go forward. There was nothing said on the record, by

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either the trial judge or counsel for appellant, regarding the circumstances associated with the in

camera discussion.

The Commonwealth called Keith, Crystal, Terrence, Devon, Keith B., Kareem, and

James. They testified that they spoke with appellant about the preparation of the returns, they

paid appellant personally, and appellant presented completed returns to them. Devon and Keith

B. testified that they waited at appellant’s home while he prepared their returns. Appellant

moved to strike the remaining twelve counts, arguing that none of the witnesses saw him prepare

the returns. Appellant further argued that the evidence was insufficient to show that he willfully

and knowingly used information that was false. The Commonwealth conceded that the evidence

was insufficient to support four of the twelve counts. The trial court denied the motion to strike

the remaining counts, and a jury found appellant guilty of eight counts of preparing false tax

returns. The court sentenced appellant to forty months’ incarceration and imposed a $20,000

fine. This appeal followed.

ANALYSIS

Appellant first argues the trial court erred when it denied his motion for a continuance to

obtain new counsel. Specifically, appellant contends the right to counsel of choice is derived

from the Sixth Amendment to the United States Constitution and, accordingly, his constitutional

rights were deprived when the trial court denied his motion. Appellant further argues that the

evidence was insufficient to support his convictions because there was no evidence to show

appellant prepared the returns or that he knew the information contained on the returns was

fraudulent or false.

I. Continuance to Obtain New Counsel

“[A]n accused’s right to be represented by counsel includes ‘not only an indigent’s right

to have the government appoint an attorney to represent him, but also the right of any accused, if

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he can provide counsel for himself by his own resources . . . to be represented by an attorney of

his own choosing.’” Feigley v. Commonwealth, 16 Va. App. 717, 720, 432 S.E.2d 520, 523

(1993) (quoting Bolden v. Commonwealth, 11 Va. App. 187, 190, 397 S.E.2d 534, 536 (1990)).

“[T]his right is a qualified right which is limited by a ‘countervailing state interest . . . in

proceeding with prosecutions on an orderly and expeditious basis.’” Bolden, 11 Va. App. at 190,

397 S.E.2d at 536 (quoting Paris v. Commonwealth, 9 Va. App. 454, 460, 389 S.E.2d 718,

721-22 (1990)).

The decision to grant a motion for a continuance is within the
sound discretion of the [trial] court and must be considered in view
of the circumstances unique to each case. The [trial] court’s ruling
on a motion for a continuance will be rejected on appeal only upon
a showing of abuse of discretion and resulting prejudice to the
movant.

Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007).

“‘In order to justify a continuance by the last minute change of counsel, exceptional

circumstances must exist.’” Johnson v. Commonwealth, 51 Va. App. 369, 374, 657 S.E.2d 812,

814 (2008) (quoting Feigley, 16 Va. App. at 721, 432 S.E.2d at 523). “However, ‘once a

defendant is erroneously denied his right to counsel of choice, no additional showing of

prejudice is required to make the violation complete.’” Id. (quoting London v. Commonwealth,

49 Va. App. 230, 239, 638 S.E.2d 721, 725 (2006)).

Appellant argues that we must apply the principle set out in London, and find that

appellant was erroneously denied his right to counsel of choice; therefore, no additional showing

of prejudice is required. However, we addressed the very same argument in Johnson and found

that where a defendant waits until the last minute to request a continuance to obtain new counsel,

exceptional circumstances must be shown to overcome the state’s countervailing interest in

proceeding expeditiously. Id. In the absence of a showing of exceptional circumstances, the trial

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court has not erroneously denied defendant his right to counsel of choice. Id. at 375, 657 S.E.2d

at 814.

In London, . . . we reversed a trial court’s denial of the defendant’s
continuance motion when the defendant’s family retained a private
attorney sixteen days before trial, the retained attorney notified the
trial court twelve days before trial, and the trial court had granted
no prior continuances at the defendant’s request. 49 Va. App. at
239, 638 S.E.2d at 725. London, unlike [Johnson], did not involve
a last minute request for a continuance, and the situation in that
case did not require “exceptional circumstances.”

Id. Although the defendant in Johnson retained an attorney a week prior to trial, he did not make

a request to change attorneys until the morning of trial. Id. at 375, 657 S.E.2d at 815. The trial

court also noted that it previously granted five continuances, at least three at defendant’s request.

Id. Accordingly, the Court held that exceptional circumstances did not justify Johnson’s motion

and the trial court did not abuse its discretion in denying the request. Id.

As in Johnson, appellant, in this case, waited until the day of trial to request a

continuance for new counsel. Thus, guided by the principles outlined above, appellant must

have presented exceptional circumstances to justify his last minute request. Appellant presented

no “exceptional circumstances,” or for that matter, any reason whatsoever for his request. The

record is silent on the subject, other than the general representation by appellant that he and his

counsel were having problems “beyond the realm of normal navigation” and did “not see eye to

eye.” Whatever specific reasons appellant had to justify the request for new counsel were

discussed outside the presence of the prosecutor, and no reasons were proffered for the record.

The Court “ha[s] many times pointed out that on appeal . . . the burden is on the appellant to

present to us a sufficient record from which we can determine whether the lower court has erred

in the respect complained of.” Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57

(1961). Thus, it is appellant’s burden to produce a record that includes the reasons presented to

the trial court that justified his request for new counsel. Having failed to do so, this Court cannot
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speculate as to what appellant might have argued before the trial court and can only view the

facts provided in the record.

The trial court, privy to appellant’s reasons for the motion, addressed the state’s

countervailing interest to proceed expeditiously. In denying appellant’s motion, the trial court

noted that a continuance was previously granted at appellant’s request, the Commonwealth had

fourteen witnesses present on the day of trial, and appellant’s counsel stated that he was prepared

to go forward. Given these circumstances, we cannot say that appellant presented exceptional

circumstances to overcome the state’s countervailing interest, justifying a last minute

continuance request to obtain new counsel. Accordingly, the trial court did not abuse its

discretion in denying appellant’s motion.

II. Sufficiency of the Evidence

Where the sufficiency of the evidence is challenged on appeal, “we must view the

evidence in the light most favorable to the Commonwealth, granting to it ‘all reasonable

inferences fairly deducible therefrom.’” Startin v. Commonwealth, 54 Va. App. 778, 789, 682

S.E.2d 115, 121 (2009) (quoting Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d

534, 537 (1975)). “We should affirm the judgment unless it appears from the evidence that the

judgment is plainly wrong or without evidence to support it.” Higginbotham, 216 Va. at 352,

218 S.E.2d at 537; see also Code § 8.01-680. A conviction may be based on circumstantial

evidence and cannot be viewed in isolation. See Commonwealth v. Hudson, 265 Va. 505, 512,

578 S.E.2d 781, 785 (2003). In a circumstantial case, the appellate court does not consider

whether “there is some evidence to support” a reasonable hypothesis of innocence, but whether

the fact finder, having considered all the evidence, reasonably could have rejected the

defendant’s theory of defense and found him guilty beyond a reasonable doubt. Id. at 513, 578

S.E.2d at 785.

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 Code § 58.1-348.1 makes it a crime to knowingly and willfully aid or assist in, counsel or

advise, the preparation or presentation of false tax returns, knowing them to be fraudulent or

false. In this regard appellant first argues that the evidence was insufficient to show that he

prepared the returns.

This Court has never addressed the elements of Code § 58.1-348.1; however, federal

courts have interpreted 26 U.S.C.S. § 7206(2), a statute containing similar language and nearly

“on-all-fours” to the provision at issue. Section 7206(2) states in relevant part, that any person

who

[w]illfully aids or assists in, or procures, counsels, or advises the
preparation or presentation under, or in connection with any matter
arising under, the internal revenue laws, of a return, affidavit,
claim, or other document, which is fraudulent or is false as to any
material matter, whether or not such falsity or fraud is with the
knowledge or consent of the person authorized or required to
present such return, affidavit, claim, or document . . . shall be
guilty of a felony . . . .

“Section 7206(2) has a broad[] sweep, making all forms of willful assistance in preparing

a false return an offense.” United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1454 (9th

Cir. 1986) (citing United States v. Haynes, 573 F.2d 236, 240 (5th Cir. 1978)). ‘“[T]he scope of

the statute extends to all participants of a scheme[,] which results in the filing of a false return,

whether or not those parties actually prepare it.’” United States v. Hooks, 848 F.2d 785, 791 (7th

Cir. 1988) (quoting United States v. Siegel, 472 F. Supp. 440, 444 (N.D. Ill. 1979)).

The relevant language of Code § 58.1-348.1 tracks the language of the federal statute,

and, thus, we find the interpretation of the federal statute persuasive in our analysis. Code

§ 58.1-348.1, like the federal statute, makes it a crime to “aid,” “assist in,” “counsel,” or “advise”

the preparation of returns. A statute “should be read to give reasonable effect to the words used

‘and to promote the ability of the enactment to remedy the mischief at which it is directed.’”

Mayhew v. Commonwealth, 20 Va. App. 484, 489, 458 S.E.2d 305, 307 (1995) (quoting Jones v.
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Conwell, 227 Va. 176, 181, 314 S.E.2d 61, 64 (1984)). In providing such expansive language in

Code § 58.1-348.1, it was clearly the legislature’s intention to criminalize all conduct related to

the preparation of false tax returns, not simply the actions of the person preparing the return.

Thus, we find the Commonwealth need not prove that appellant prepared the returns at issue;

rather, the Commonwealth need only prove that appellant aided, assisted, counseled, or advised

in the preparation of the returns. From the record, it is clear the evidence was sufficient to

support such a finding.

Appellant spoke with each individual about his or her income and possible deductions.

Appellant collected information relevant to the preparation of the returns. He asked for and

accepted payment in cash from each individual. He delivered the prepared returns to each

individual. Both Devon and Keith B. waited at appellant’s home while the return was prepared.

Finally, appellant’s home computer contained copies of many of the returns. From this evidence,

a reasonable fact finder could certainly conclude, beyond a reasonable doubt, that appellant

knowingly and willfully aided, assisted, counseled, or advised in the preparation of the eight

returns.

Appellant further argues that the evidence was insufficient to show that he knew the

information contained on the returns was false. Specifically, appellant argues that the

Commonwealth did not present evidence sufficient to exclude the reasonable hypothesis that he

made mistakes on the returns.

Appellant contends that in every case, there was a reasonable explanation justifying a

mistake. He argues that in Crystal’s case, she told appellant she wanted to file as head of

household, thereby creating an inference that she was single. In addition, appellant notes that

Devon admitted that he and appellant discussed mileage and accordingly, appellant argues he was

simply mistaken in his mileage estimates. Furthermore, appellant notes that Kareem admitted that

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he was a traveling salesman. Thus, appellant contends, it was reasonable for appellant to believe

Kareem had business deductions. Finally, appellant correctly notes that James provided a mileage

certificate, and the only false information asserted by the Commonwealth as to James was that the

mileage numbers on the return were incorrect. Appellant contends again, he was simply mistaken

in his mileage estimates. Appellant argues that in every other case, the individuals signed their

returns without pointing out mistakes or questioning the numbers used by appellant. Therefore,

appellant argues, the evidence was insufficient to prove he knew the information contained on the

returns was fraudulent or false.

However, viewing the evidence in the light most favorable to the Commonwealth, as we

must, we cannot say that appellant’s hypothesis of mistake is reasonable. Each of the

Commonwealth’s witnesses testified that he or she gave appellant very specific information and

that other information was included on the return that the individual did not provide. Both

Keith’s and Crystal’s returns were filed using the single filing status, despite appellant’s

conversation with both of them discussing the fact that the two were married. Further, appellant

used exaggerated, if not completely made up, business expenses and mileage deductions on

every return. Keith’s return included mileage deductions that Keith said he did not provide.

Devon’s return contained $18,000 in mileage deductions, including starting and ending mileage

for the year. Devon never supplied those numbers to appellant, and Devon testified that the

numbers included on the return were, in fact, incorrect. Terrence’s return included business

operating expenses, business losses, and mileage deductions, none of which Terrence supplied to

appellant. Keith B.’s return contained over $17,000 in itemized deductions, including business

mileage deductions. Again, Keith B. testified that he never supplied appellant with those numbers.

Kareem gave appellant only his W-2 form, yet his return contained $16,000 in business deductions,

including mileage deductions. Finally, James’s return contained almost $39,000 worth of

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unreimbursed business expenses, including mileage deductions. Although James gave appellant a

mileage certificate showing 90,000 miles driven that year, James also gave appellant his W-2 form,

indicating the vehicle belonged to his company. Thus, James was not entitled to mileage

deductions.

Based on the cumulative evidence, appellant cannot assert that he was mistaken about

certain returns in which the individual did provide some of the reported deductions. See United

States v. Hayes, 322 F.3d 792, 798 (4th Cir. 2003) (holding that repeated use of the same false

deduction supplies evidence of appellant’s knowledge that those numbers were false). In Hayes,

the Fourth Circuit Court of Appeals was confronted with circumstances substantially similar to

those in the instant case. Hayes was indicted on twenty-four counts of fraudulent tax

preparation, in violation of 26 U.S.C.S. § 7206(2). Id. at 795. Hayes’s customers testified that

Hayes substantially overstated some of their deductions, primarily for charitable contributions

and medical expenses. Id. at 796. Hayes denied fabricating any of the numbers used on the

returns. Id. The witnesses testified that they provided Hayes with certain information that did

not include medical deductions; yet in every case, the return included substantial medical

deductions. Id. The Court held,

[i]n light of the general reliability of business records and the
substantial similarities between the errors on the . . . returns and
false deductions noted on other returns prepared by Hayes, a jury
could reasonably conclude that Hayes fabricated the incorrect
figures on the . . . returns. Accordingly, the evidence was
sufficient to support Hayes’ convictions.

Id. at 799. In one case, the witness asserted that she did in fact have medical deductions of

$13,000 for the year. Id. at 798. However, the court found the evidence sufficient to convict

Hayes of fraudulently including a $14,000 medical deduction on her return, in part because “this

figure . . . resemble[d] false medical deductions claimed by Hayes in other returns he prepared.”

Id.
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 The Fourth Circuit’s reasoning in Hayes is applicable to the instant case. Based on the

substantial similarities among the errors on all the returns and the witnesses’ testimony that they

did not give appellant information about mileage or other business deductions, a reasonable fact

finder could determine that appellant simply fabricated the numbers on the returns.

Further, appellant’s argument that the individuals signed the returns without pointing out

mistakes in the information provides no defense. The fact that the individuals may have known

their returns were false does not exculpate appellant under Code § 58.1-348.1.

Finally, and especially significant in this case, is the fact that appellant worked for the

Department for eleven years. As a tax collections representative, his job was to review state tax

returns and ensure both businesses and individuals complied with the requisite tax laws. In this

capacity, a fact finder would be justified in finding it incredible that appellant did not know the

proper method of preparing tax returns. Accordingly, we find the evidence sufficient to prove,

beyond a reasonable doubt, that appellant knew the information included on the returns was

fraudulent or false.

CONCLUSION

For these reasons, we find the trial court did not abuse its discretion in denying

appellant’s request for a continuance to obtain new counsel on the day of trial. Additionally, the

evidence was sufficient to support appellant’s convictions for eight counts of preparing false tax

returns. Accordingly, we affirm appellant’s convictions.

Affirmed.

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