In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2566
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
F LAVIO P EREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CR 166—John W. Darrah, Judge.
A RGUED F EBRUARY 10, 2010—D ECIDED JULY 6, 2010
Before R IPPLE, M ANION, and W ILLIAMS, Circuit Judges.
M ANION, Circuit Judge. A jury convicted Flavio Perez
of two counts of filing false federal income tax returns.
The district court sentenced Perez to 33 months’ imprison-
ment. Perez appeals, claiming that the district court
violated his right to be present at trial by conducting a
jury instruction conference in his absence. He also chal-
lenges the district court’s failure to provide a jury in-
struction on the government’s net worth and expenditure
2 No. 08-2566
method of proof, its limitation on expert testimony, and
the sufficiency of the evidence. We affirm.
I.
Flavio Perez ran a drywall installation company called
Chateau Drywall, Inc., and a related sole proprietorship.
The sole proprietorship received income from Chateau
Drywall and in turn the sole proprietorship distributed
payments to Perez and other drywall installers
who were classified as independent contractors. Perez
reported the income from the sole proprietorship on his
Schedule C.
In 2000 and 2001, Perez declared on his federal income
tax return (filed jointly with his wife, Sara Bello) total
income of $125,079 and $268,387, respectively. The
income tax returns were prepared by tax preparers
Urbaldo Rojas and Arthur Rubalcaba based on informa-
tion Bello and Perez provided them.
The government believed that Perez had purposely
under-reported his income and charged him in a two-
count information with filing false individual federal
tax returns in violation of 26 U.S.C. § 7206(1).1 Perez
pleaded not guilty and proceeded to trial. At trial, the
government sought to prove its case using the “net worth
and expenditure method” (“net worth method”). Under
the net worth method, an individual’s actual income
is estimated by comparing his net worth at the beginning
1
Perez waived indictment by a grand jury.
No. 08-2566 3
of the tax year to his net worth at the end of the tax year,
taking into account expenditures for basic living expenses
and any non-taxable sources of assets (such as gifts,
inheritances, and loans). See Holland v. United States,
348 U.S. 121, 125 (1954) (explaining the net worth
method of proof).
The government presented evidence that on Decem-
ber 31, 1999, Perez’s net worth was approximately
$100,000, that during 2000, he had expenditures of about
$123,000, and that by the end of the year his net worth
increased to $218,911. Because Perez had reported
income of only $125,079 for 2000, the government’s
expert concluded that (to increase his net worth by as
much as he did in 2000) Perez had unreported income
of more than $100,000. For 2001, the government’s expert
determined that Perez’s net worth increased from
$218,911 to $571,488, and that he had expenditures of
approximately $186,000. Because Perez had reported
income of only $268,387 for 2001, the government’s
expert concluded that (to increase his net worth by as
much as he did in 2001) Perez had unreported income
of more than $200,000.
At trial, the government also presented evidence that
Perez gave clients discounts for cash jobs, paid some of
his independent contractors in cash, and did not inform
his wife—who usually provided the tax preparers with
the financial information used to prepare the tax re-
turns—of some of the cash-based jobs. Additionally, the
government presented evidence that Perez provided the
tax preparers with a last-minute list of deductions, without
4 No. 08-2566
any supporting documentation, exceeding by more
than $111,000 the amount of deductions they had calcu-
lated using business records Bello gave them.
Perez presented his own expert witness who challenged
numerous aspects of the government’s calculation of
Perez’s income under the net worth method. Perez also
elicited testimony from his expert that the net worth
method is “not the most accurate or reliable method
for determining taxable income. The most accurate and
reliable would be the specific items method that was
mentioned by [the government’s expert].” The govern-
ment objected to Perez’s expert expressing general criti-
cisms of the method and asked that the expert’s testimony
be limited to specific criticisms about how the net worth
method was applied in Perez’s case. At side bar, the
district court stated, “[h]e just opined that the net worth
analysis itself is somehow unreliable. What’s the basis of
that opinion?” Perez’s attorney responded: “Based on his
experience.” The district court responded, “No,” and the
prosecutor then said: “We would move to strike that.” The
district court then stated:
Yes. You can render an opinion—he can testify in the
form of opinion if the testimony is based upon suffi-
cient facts or data, the testimony is the product of
reliable principles and methods, and the witness has
applied the principles and methods reliably to the
facts. What testimony is he going to offer that would
supply the data or facts to support that opinion, and
what principles or methodology did he use to result
to arrive at that opinion?
No. 08-2566 5
Rather than respond to the district court’s questions,
Perez’s trial counsel stated, “I’ll just move on.” The district
court responded: “No, no,” to which Perez’s attorney
said, “We’ll withdraw it.” The district court then re-
sponded: “No. We’re going to sustain the objection, and
I’ll instruct them to disregard.” Perez’s attorney re-
sponded: “Absolutely, judge.” The court so instructed the
jury.
Bello also testified; she testified that they had provided
Rojas and Rubalcaba all relevant information and had
relied on the tax professionals to prepare accurate
income tax returns. Bello explained that she had
informed Rojas and Rubalcaba that Perez had received a
piece of land in payment of a $60,000 business debt
and that, unbeknownst to the Perezes, Rojas and
Rubalcaba had neglected to include that income on
Perez’s tax return.
After the close of evidence, the district court met with
the attorneys in open court to discuss jury instructions.
Perez, however, was not present for this conference. The
government offered a jury instruction explaining the
net worth method, but Perez’s attorney stated that the
defense did not want the jury provided with a net
worth instruction because by explaining the net worth
method to the jury, “[i]t’s basically the stamp of approval
by the court.” He also stated that Perez’s defense was to
challenge the accuracy and completeness of the net
worth method.
The following day the judge revisited the issue, but
Perez was also absent for this conference. The judge
6 No. 08-2566
began by noting that Perez has “the right to instruct the
jury on the net worth method.” The court then asked
Perez’s attorney: “[D]o you wish to give the instruction?”
He responded: “No, your Honor, we do not.” The court
then added: “You understand that you have an absolute
right to give it, and you understand that if you offered
such an instruction, I would give it.” Again, Perez’s
attorney responded: “Yes, your Honor, I do.” The court
further clarified Perez’s intent by asking: “In representing
your client, you choose to follow a strategy that
would not include giving this instruction?” Perez’s attor-
ney responded: “Correct, your Honor.” The Assistant
United States Attorney at this point noted that Perez
was not present and the court followed up by asking
Perez’s attorney: “Have you discussed this with your
client as well?” Perez’s attorney replied: “I have dis-
cussed it with him. I haven’t discussed it in terms of
explaining Tolbert,2 of course, and I will confirm this
when he gets here. And if you would like, we can put
it back on the record that I’ve now explicitly told him
that.” The court decided instead to direct Perez’s
attorney to inform him of the court’s comments and to
tell Perez the court would give the instruction if he
desired. The court then noted that “at the completion of
the closing arguments, if you don’t approach me and say
you want the instruction given, I’ll deem you to have
2
Perez’s attorney was referring to United States v. Tolbert,
367 F.2d 778, 781 (7th Cir. 1966), where this court held that
the lack of a net worth instruction constituted plain error.
See infra at 11.
No. 08-2566 7
waived whatever rights you have on behalf of your client
with his concurrence to the giving of that instruction. Is
that fair enough?” And Perez’s attorney responded:
“Fair enough, your Honor.”
After closing arguments, Perez’s attorney did not ask
for the net worth method instruction, and it was not
given. The jury convicted Perez on both counts, and
the district court sentenced him to twenty-two months’
imprisonment on count one and eleven months’ impris-
onment on count two, to run consecutively. Perez appeals.
II.
On appeal, Perez presents four challenges to his con-
viction. First, he argues that the district court violated
his right under Federal Rule of Criminal Procedure 43 to
be present at trial by conducting the jury instruction
conference in his absence. Second, Perez challenges
the district court’s failure to provide a jury instruction
on the government’s net worth method of proof. Third,
he argues the district court improperly barred his expert
witness’s testimony concerning general flaws in the
net worth method. Finally, Perez claims that the evi-
dence was insufficient to support his conviction. We
address each issue in turn.
A. Federal Rule of Criminal Procedure 43
Perez first argues that the district court violated his
rights under Rule 43 to be present at trial by conducting
8 No. 08-2566
the jury instruction conference in his absence. Rule 43
provides that “the defendant shall be present . . . at every
stage of the trial including the impaneling of the jury
and the return of the verdict and at the imposition of
sentence, except as otherwise provided by this rule.” Fed.
R. Crim. P. 43(a). Rule 43(b)(3), however, provides that
a “defendant need not be present [when] . . . [t]he pro-
ceedings involve only a conference or hearing on a ques-
tion of law.” The government claims that because jury
instructions concern questions of law, Perez was not
entitled to be at the jury instruction conference. Perez
responds that because the issue of whether to give the
net worth instruction concerned a question of strategy
rather than of law, he had the right to be at the conference.
Perez’s argument is misplaced. Courts are not in the
business of holding hearings to oversee or approve a
defendant’s trial strategy; they hold hearings to address
legal or factual issues (or sometimes both) or to estab-
lish case management schedules. True, trial courts often
inquire into strategy to establish that waivers are
knowing and voluntary and to preserve judicial re-
sources (by avoiding the potential for reversible error or
collateral attack). But a court’s inquiry into a defendant’s
strategy does not alter the purpose of the conference,
which in this case was to determine the appropriate
jury instructions. The content of jury instructions is a
question of law, and as such the jury instruction con-
ference, assuming arguendo it was a stage of trial, fell
within the Rule 43(b)(3) exception for “a conference or
hearing on a question of law.” United States v. Rivera, 22
F.3d 430, 438-39 (2d Cir. 1994) (“The content of the instruc-
tions to be given to the jury is purely a legal matter, and
No. 08-2566 9
a conference to discuss those instructions is thus a con-
ference on a question of law at which a defendant
need not be present.”) (internal citations omitted); United
States v. Sherman, 821 F.2d 1337, 1339 (9th Cir. 1987) (“We
hold that a hearing outside the presence of the jury con-
cerning the selection of jury instructions is a ‘conference
or argument upon a question of law . . . .’ ”); United States
v. Graves, 669 F.2d 964, 972 (5th Cir. 1982) (“A defendant
does not have a federal constitutional or statutory right
to attend a conference between the trial court and
counsel concerned with the purely legal matter of deter-
mining what jury instructions the trial court will issue.”).
Perez also argues that because his trial attorney
objected to the government’s net worth instruction based
on strategy and not the law, Rule 43 required the district
court to inform Perez of the discussions that occurred
during the jury instruction conference and ask Perez
his position on the issue. Again, Perez’s position is mis-
placed. While a defendant
has ultimate authority to make certain fundamental
decisions regarding the case, as to whether to plead
guilty, waive a jury, testify in his or her own behalf, or
take an appeal . . . the remaining decisions are in the
hands of counsel. It could hardly be otherwise, unless
trials are to be indefinitely extended as judges ask
the defendant whether each decision (or omission)
meets with his pleasure. The process would be
worse than cumbersome. It would undermine the
defendant’s ability to entrust decisions to a legally
trained person.
United States v. Boyd, 86 F.3d 719, 723 (7th Cir. 1996).
10 No. 08-2566
The right to specific jury instructions is one of those
“remaining decisions” that rests in the hands of the
attorney. Thus, this court rejected the argument that a
defendant must personally waive jury instructions in
United States v. Griffin, 84 F.3d 912, 924 (7th Cir. 1996),
holding:
The right to object to jury instructions on appeal is
waived if the record illustrates that the defendant
approved of the instructions at issue. We do not
require the defendant personally to waive objection,
nor is the district court required to address the
waiver question directly to the defendant. The waiver
must, however, arise out of voluntary affirmative
conduct, consistent with the proactive description
of waiver in Johnson, 304 U.S. at 464 (“intentional
relinquishment or abandonment”).
Griffin then concluded that the defendant waived any
objection to the jury instructions when “[h]is counsel
explicitly confirmed the district court’s belief that the
defendants would prefer [Instruction] 53A.” Id. See also
United States v. Babul, 476 F.3d 498, 500 (7th Cir. 2007)
(explaining that some rights are so important that only
a defendant may personally waive them, but “[b]y
contrast, choices about trial practice and manage-
ment—should a given witness’s testimony be presented?
should a hearsay objection be made? what language should
be proposed for the jury instructions?—are committed to
counsel, not only because they are numerous (asking the
defendant each time would be impractical) but also
because they are the sort of choices for which legal
No. 08-2566 11
training and experience are most helpful”) (emphasis
added).
Similarly, in this case, while it would have been rela-
tively easy (and prudent) for the district court to obtain
Perez’s personal waiver on the record, the court was not
required to address the jury instructions directly with
Perez.
B. Net Worth Jury Instruction
Next, Perez argues that the district court’s failure to
provide the net worth method instruction constitutes
plain error which requires reversal of his conviction.
This court has held that “the complete lack of any in-
struction on the nature of the [net worth] method and
its concomitant assumptions and inferences affects a
substantial right of the accused and constitutes plain
error . . . and requires a reversal despite the lack of an
objection by the defendant to such omission.” Tolbert,
367 F.2d at 781. But while we may use plain error review
to correct serious errors despite a defendant’s failure to
object, such review “cannot be used for the purpose
of revoking an otherwise valid waiver.” United States v.
Lakich, 23 F.3d 1203, 1207 (7th Cir. 1994). And here,
Perez unquestionably waived his right to the net worth
instruction: his attorney did not merely fail to object to
the instruction, but rather insisted that the instruction
not be given, even after having been expressly informed
of the right to the instruction and that the court would
12 No. 08-2566
deem the right waived.3 Because Perez waived the right
to the net worth instruction, there was no error. Babul,
476 F.3d at 500 (“Waiver means that there was no error;
even plain-error review is unavailable.”); Boyd, 86 F.3d
at 722 (“But steps the court takes at the defendant’s
behest are not reversible, because they are not error;
even the ‘plain error’ doctrine does not ride to the
rescue when the choice has been made deliberately, and
the right in question has been waived rather than for-
feited.”).
Moreover, even if Perez had not waived the issue, he
could not establish plain error because the lack of the
net worth instruction in this case was harmless. See
United States v. Olano, 507 U.S. 725, 734-35 (1993) (holding
that under plain error review, the question of prejudice
is the same as the harmless error analysis, except that
here, the defendant bears the burden of persuasion with
respect to prejudice). The reason the net worth instruc-
tion is so imperative is that “the method requires assump-
tions, among which is the equation of unexplained in-
creases in net worth with unreported taxable income.
Obviously such an assumption has many weaknesses. It
may be that gifts, inheritances, loans and the like
account for the newly acquired wealth.” Holland, 348 U.S.
at 127. Thus, “without guarding instruction,” there is “a
great danger that the jury may assume that once the
3
As noted above, see supra at 9-11, an attorney may waive
the right to jury instructions on behalf of his client; a defendant
need not personally waive his right to a net worth instruction.
No. 08-2566 13
Government has established the figures in its net worth
computations, the crime of tax evasion automatically
follows.” Id. at 127-28. But in this case there was
absolutely no evidence that Perez had non-taxable
inflows which could explain the increase in his net
worth. Accordingly, the failure to provide a net worth
instruction would be harmless in any event.
C. Expert Testimony
Perez next argues that the district court erred in pro-
hibiting his expert from testifying concerning flaws in
the net worth method. However, as the trial transcript
excerpted above makes clear, see supra at 4-5, after
the government objected to Perez’s attorney eliciting
testimony from his expert on general flaws in the net
worth method, Perez’s attorney voluntarily abandoned
this line of questioning. Therefore, Perez waived any
challenge to the district court’s ruling. Cf. United States
v. Wilkins, 659 F.2d 769, 775 (7th Cir. 1981) (holding that
defendant “in withdrawing his motion to suppress
waived any objection to the admission of the statement”).
Perez’s appellate attorney (who did not represent him
below), attempts to avoid the waiver by asserting that
seeking to withdraw the question was merely “a trial tactic
to not give the jury the impression that he was asking
improper questions.” The record shows, however, that
the exchange concerning limits on Perez’s expert’s testi-
mony occurred during a side bar and thus outside the
hearing of the jury. Additionally, Perez’s proposal to
“move on” and “withdraw the question” came in
14 No. 08-2566
response to the district court’s inquiry for the basis of the
expert’s opinion. Thus, the waiver came at a point when
the district court was still willing to allow the ques-
tion—assuming the expert’s opinion was proper under
Daubert. Finally, to the extent that Perez’s trial attorney
was making a tactical decision in withdrawing the ques-
tion, as Perez’s appellate attorney asserts, that actually
supports a finding of waiver. See, e.g., United States v.
Cooper, 243 F.3d 411, 416-17 (7th Cir. 2001) (holding that
the defendant waived (as opposed to forfeited) any ob-
jection to the admission of evidence where conduct of the
defendant’s attorney demonstrated it was a strategic
decision not to object, as opposed to a mere oversight).
D. Sufficiency of the Evidence
Finally, Perez argues that the evidence was insufficient
to support the jury’s verdict. A defendant seeking to
challenge the sufficiency of the evidence faces a daunting
task. United States v. Seymour, 519 F.3d 700, 714 (7th Cir.
2008). “In considering a sufficiency of the evidence chal-
lenge, this court considers the evidence in the light most
favorable to the Government, defers to the credibility
determination of the jury, and overturns a verdict only
when the record contains no evidence, regardless of how
it is weighed, from which the jury could find guilt
beyond a reasonable doubt.” United States v. Huddleston,
593 F.3d 596, 601 (7th Cir. 2010).
In this case, the jury convicted Perez of filing a false tax
return in violation of § 7206(1). Section 7206(1) provides:
No. 08-2566 15
Any person who [w]illfully makes and subscribes any
return, statement, or other document which contains
or is verified by a written declaration that it is made
under the penalties of perjury, and which he does not
believe to be true and correct as to every material
matter . . . shall be guilty of a felony and, upon con-
viction thereof, shall be fined not more than $100,000
($500,000 in the case of a corporation), or imprisoned
not more than 3 years, or both, together with the
costs of prosecution.
26 U.S.C. 7206(1). “A conviction ‘under section 7206(1)
requires proof that: (1) a person made or subscribed to a
federal tax return which he verified as true; (2) the
return was false as to a material matter; (3) the defendant
signed the return willfully and knowing it was false;
and (4) the return contained a written declaration that
it was made under the penalty of perjury.’ ” United States
v. Powell, 576 F.3d 482, 495 (7th Cir. 2009) (quoting
United States v. Presbitero, 569 F.3d 691, 700 (7th Cir. 2009)).
In order to prove its § 7206(1) case, the government used
the net worth method to show that Perez’s federal tax
returns were false, i.e., that he did not report all of his
income. Specifically the government presented expert
testimony from Richard Lexby, a CPA who has been an
IRS revenue agent since 1978; Lexby has previously
testified as an expert fourteen times in federal district
court and four times in federal tax court. Lexby testified
in great detail about how he calculated Perez’s net
worth and income, explaining that he had reviewed
Perez’s bank accounts, a check from Perez’s in-laws, an
16 No. 08-2566
IRA account, outstanding loans, real estate purchased by
Perez, and the value of the Perezes’ automobiles. Lexby
walked the jury through his calculations, elaborating
on each of the various components in his net worth analy-
sis. Lexby then provided the jury with the bottom
line, testifying that on December 31, 1999, Perez’s net
worth was approximately $100,000, that during 2000, he
had expenditures of about $123,000, and that by the end of
the year his net worth increased to $218,911. Lexby con-
cluded that because Perez had reported income of only
$125,079 for 2000, Perez’s unreported income exceeded
$100,000. For 2001, Lexby testified that Perez’s net worth
increased from $218,911 to $571,488 and that he had
expenditures of approximately $186,000. Lexby con-
cluded that because Perez had reported income of only
$268,387 for 2001, Perez had unreported income of more
than $200,000.
Perez argues that the IRS’s net worth evidence was
insufficient to support his conviction because of nu-
merous flaws in Lexby’s analysis. However, as we ex-
plained in United States v. Gonzalez, 933 F.2d 417, 429 (7th
Cir. 1991), “any questions or problems concerning the
expert’s opinion and testimony may be thoroughly ex-
plored during the cross-examination of the expert wit-
ness.” In this case, Perez’s trial attorney cross-examined the
government’s expert on the alleged flaws. The jury also
heard the testimony of Perez’s expert about these sup-
posed flaws “and obviously rejected it; on a sufficiency-of-
the-evidence challenge, we will not second-guess the
jury’s credibility determinations.” United States v. Olofson,
No. 08-2566 17
563 F.3d 652, 659 n.6 (7th Cir. 2009).4 Moreover, as this
court made clear in United States v. Pree, 408 F.3d 855, 867
(7th Cir. 2005), “to establish falsity as to the [tax] returns,
the Government needed only to prove that [defendant]
had unreported income, not the exact amount of such
unreported income or the existence of a tax deficiency.”
See also Leeby v. United States, 192 F.2d 331, 334 (8th Cir.
1951) (“It must be borne in mind that this was not an
action to recover the amount of income taxes alleged to
be due, nor an action in which it was necessary to deter-
mine the exact amount of defendant’s income for the
years in question. On this phase of the case all that it
was necessary to show was that there was omitted from
the reported income a substantial amount.”). Perez’s
own expert testified that he did not know the net effect
of all the items and flaws he had purportedly identi-
fied. Thus, even if there were some flaws in Lexby’s
analysis, the jury still could have concluded that Perez
had nonetheless failed to report a substantial amount
of income.
Perez also argues that the evidence was insufficient to
support a finding of willfulness. As noted above, to
sustain a conviction under § 7206(1), the government
must establish that the defendant willfully signed a
false tax return. See supra at 15. In Cheek v. United States,
498 U.S. 192, 201 (1991), the Supreme Court held that
“[w]illfulness, as construed by our prior decisions in
4
Perez does not argue that the district court abused its discre-
tion in admitting Lexby’s testimony under Rule 702.
18 No. 08-2566
criminal tax cases, requires the government to prove
that the law imposed a duty on the defendant, that defen-
dant knew of this duty, and that he voluntarily and
intentionally violated that duty.” Willfulness may be
proven by circumstantial evidence. United States v. Ytem,
255 F.3d 394, 396 (7th Cir. 2001). And willfulness
may be inferred from conduct such as keeping a
double set of books, making false entries or altera-
tions, or false invoices or documents, destruction of
books or records, concealment of assets or covering
up sources of income, handling one’s affairs to
avoid making the records usual in transactions of the
kind, and any conduct, the likely effect of which
would be to mislead or to conceal.
United States v. Eaken, 17 F.3d 203, 206 (7th Cir. 1994)
(quoting Spies v. United States, 317 U.S. 492, 499 (1943)).
In this case, the evidence established that Perez knew
he had a duty to report income from his various drywall
jobs—because he did in some instances. The evidence
was also more than sufficient to support the jury’s
verdict that Perez willfully violated that duty by not
reporting all of his income on his income tax returns.
Specifically, the evidence showed that Perez was in
control of the financial affairs of his drywall business,
that he often received payment in cash for drywall work,
and that he made substantial cash investments in real
estate, cars, and collectible weapons. The evidence also
showed that Perez received cash payments from
customers and did not inform his wife of all of those
payments, and his wife was the one who provided the
No. 08-2566 19
financial information to the tax preparer. Additionally,
the government’s net worth expert explained how the
increase in Perez’s net worth during the 2000 and 2001
tax years meant that Perez had under-reported his
taxable income for those years by nearly $300,000. Perez’s
use of discounts for cash jobs—i.e., jobs where there is
no paper trail—is further circumstantial evidence of
intent. See, e.g., United States v. Roman, 492 F.3d 803, 804
(7th Cir. 2007) (noting that “a lot of ‘cash’ that changes
hands in the underground economy, . . . [does] not find
[its] way onto . . . federal income tax returns”). Together,
this evidence reasonably supported the jury’s conclu-
sion that Perez willfully filed false income tax returns.
In response, Perez argues that the evidence was not
sufficient to show that he willfully filed a false tax return
because he reasonably relied upon his tax preparers to
report the correct income. Perez correctly notes that
[i]t is a valid defense to a charge of filing a false
return if a defendant provides full information re-
garding his taxable income and expenses to an ac-
countant qualified to prepare federal tax returns, and
that the defendant adopts and files the return as
prepared without having reason to believe that it is
incorrect.
United States v. Whyte, 699 F.2d 375, 379 (7th Cir. 1983).
However, in this case, the jury could have reasonably
concluded, based on testimony from the government’s
expert, that Perez did not provide his tax preparers with
complete information of all sources of income given the
extent of the increase in his net worth during the time
20 No. 08-2566
period at issue. The jury also could have reasonably
concluded that Perez did not provide his tax preparers
full information concerning business expenses. Spe-
cifically, the government presented testimony from
Rojas that on April 14, 2001, the day before his 2000 tax
return was due, Perez, accompanied by his wife, went
to Rojas’s office and gave him a list of deductions;
those deductions exceeded the amount of deductions
Rojas had calculated using the information Bello had
previously provided by more than $111,000. Rojas fur-
ther testified that Perez had no supporting documenta-
tion for these deductions. Bello denied the April 14,
2001, meeting occurred and maintained that they never
gave Rojas any revised figures for deductions, claiming
instead that Rojas had made the changes on his own.
The jury, however, could have reasonably disbelieved
Bello’s testimony and concluded that they had falsely
provided a list of deductions to Rojas. And if the jury
concluded Bello was lying about this meeting and these
deductions, it likewise could have reasonably concluded
that she was lying to cover up for Perez’s willful false
reporting of income.
Perez further asserts that the evidence was not suf-
ficient to show willful intent to falsely report income
because his wife brought to the attention of their accoun-
tants the land they received in payment of a $60,000
debt. Perez argues that
[i]f he was trying to falsify anything he would have
kept this transaction hidden in that by disclosing it
he was in essence increasing his net liability not
No. 08-2566 21
decreasing it. This fact alone shows that Mr. Perez’s
return was not a willful false return as alleged, but
rather a complicated one which confounded everyone,
even two experienced accountants which he relied on.
Appellant Brief at 35. The jury, however, heard this
evidence and nonetheless concluded that Perez willfully
withheld information about other income from his
tax preparers. We cannot say that the jury acted unrea-
sonably in so concluding. See, e.g., Powell, 576 F.3d at 495
(rejecting defendant’s argument that evidence was insuf-
ficient to establish willfulness where he had filed an
amended tax return, noting that “for what it was worth,
[the defendant] was able to put that evidence in front
of the jury”); United States v. Dunn, 961 F.2d 648, 651
(7th Cir. 1992) (affirming defendant’s conviction under
§ 7206(2) and holding the jury was entitled to discredit
evidence that defendant relied on two attorneys, one
of whom was also a CPA, in finding defendant acted
willfully). Moreover, given the large amount of unre-
ported income (as established through the net worth
method), a reasonable jury could have concluded that
Perez willfully failed to report all of his income.
III.
The district court did not violate Perez’s right under
Federal Rule of Criminal Procedure 43 to be present at trial
by conducting a jury instruction conference in his
absence because such a conference concerns questions
of law and is thus exempt from Rule 43. Perez, through
his attorney, waived any challenge to the district court’s
22 No. 08-2566
failure to provide a jury instruction on the government’s
net worth and expenditure method of proof. Perez also
waived any challenge to the district court’s limitation on
his expert witness’s testimony. Finally, the evidence
was more than sufficient to support the jury’s finding
that Perez willfully filed false income tax returns in
violation of § 7206(1). For these and the foregoing
reasons, we affirm.
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