UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5021
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HINTON HUFF, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr.,
Senior District Judge. (2:08-cr-00225-HCM-FBS-1)
Submitted: July 14, 2010 Decided: July 28, 2010
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
A. Aaron Aldridge, Lebanon, Ohio, for Appellant. Neil H.
MacBride, United States Attorney, Alan M. Salsbury, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a three-day jury trial, Hinton Huff, Jr.,
was found guilty of twenty-nine counts of willfully aiding and
assisting in the preparation of false tax returns, in violation
of 26 U.S.C. § 7206(2) (2006). Huff was sentenced to fifteen
months’ imprisonment. For the reasons that follow, we affirm
the district court’s judgment.
I. Sufficiency of the Government’s Evidence
Huff first asserts the Government presented
insufficient evidence of his guilt, because it did not prove
that he acted with another culpable participant. This argument
fails under the express language of the statute of conviction,
which imputes criminal liability to a tax preparer who prepares
a false return, regardless of whether the taxpayer knows of or
consents to the falsity. See 26 U.S.C. § 7206(2). This was
precisely the case here. To avoid this conclusion, Huff relies
on United States v. Searan, 259 F.3d 434 (6th Cir. 2001).
However, the issue in Searan was whether an assistant to a tax
preparer is criminally liable under § 7206(2). See Searan, 259
F.3d at 443-46. Thus, the Searan court’s discussion of another
actor’s criminal liability is irrelevant given the facts of this
case.
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Huff next argues the Government failed to prove that
he acted willfully, because the Government did not present
evidence of his motive. We disagree. Under United States v.
Pomponio, 429 U.S. 10, 12 (1976), a tax violation is “willful”
if it is “a voluntary, intentional violation of a known legal
duty,” and the Government need not prove “any motive other than
an intentional violation of” that duty. Huff further argues
that, because the Government did not prove a tax loss, it failed
to show that Huff acted willfully. In addition to being legally
irrelevant, this assertion is factually inaccurate, because an
IRS agent testified that the falsified returns resulted in an
aggregate tax loss of over $78,000.
Finally, we reject Huff’s contention that there was
insufficient evidence to prove that he personally prepared the
tax returns that were the subject of his indictment. The
evidence at trial established that, in a pre-trial interview
with an IRS agent, Huff admitted preparing the returns.
Moreover, each of the witnesses testified that Huff prepared
their taxes; the tax returns were signed by Huff; and two
defense witnesses testified that Huff was the sole tax preparer
in the office. This evidence was more than sufficient to
support the jury’s verdicts.
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II. Sufficiency of the Indictment
Huff argues his convictions should be reversed because
the indictment failed to specify the criminal acts alleged or
the items on each return that were falsely claimed. Although a
criminal defendant may challenge the sufficiency of his
indictment at any time, because Huff raises the issue for the
first time on appeal, we liberally construe the indictment, “and
every intendment is then indulged in support of . . .
sufficiency.” United States v. Williams, 152 F.3d 294, 298 (4th
Cir. 1998) (alteration in original) (internal quotation marks
omitted).
To withstand a vagueness challenge, an indictment must
“contain[] the elements of the offense charged and fairly
inform[] a defendant of the charge against which he must
defend, . . . enabl[ing] him to plead an acquittal or conviction
in bar of future prosecutions for the same offense.” United
States v. Smith, 441 F.3d 254, 260-61 (4th Cir. 2006) (internal
quotation marks omitted). An indictment that mirrors the
language of the statutory charge and includes facts specific to
the defendant’s actions is constitutionally adequate. See
Hamling v. United States, 418 U.S. 87, 117 (1974).
The indictment here satisfies these requirements. In
addition to mirroring the statutory language of 26 U.S.C.
§ 7206(2), the indictment also included a chart that delineated
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the particular tax return that formed the basis for each count,
the “falsely claimed item” on that return and its corresponding
“falsely claimed amount,” the date the return was filed, and the
taxpayer for whom it was prepared. The Government was under no
obligation to provide a line-by-line recitation of all the
falsifications within each allegedly falsified item. 1
III. Prosecutorial Misconduct
Huff next argues his convictions should be reversed
because the Assistant United States Attorney (“AUSA”) improperly
vouched for the credibility of the Government’s witnesses, and
misstated the law pertaining to immunity agreements and the uses
of Tax Form Schedule C. Because Huff did not object on these
bases at trial, this court’s review is for plain error. See
United States v. Baptiste, 596 F.3d 214, 226 (4th Cir. 2010).
To establish plain error, Huff must demonstrate there was error,
it was plain, and that it affected his substantial rights.
United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005).
Even if Huff satisfies this difficult burden, this court will
1
We also reject Huff’s contention that the indictment was
flawed because it did not particularize the date each return was
prepared. “Where a particular date is not a substantive element
of the crime charged, strict chronological specificity or
accuracy is not required.” Smith, 441 F.3d at 261 (internal
quotation marks omitted). The particular date of the offense is
simply not an element of § 7206(2).
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not notice the error unless it “seriously affects the fairness,
integrity or public reputation of judicial proceedings.”
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (internal
quotation marks and alteration omitted).
“Vouching generally occurs when the prosecutor’s
actions are such that a jury could reasonably believe that the
prosecutor was indicating a personal belief in the credibility
of the witness.” United States v. Johnson, 587 F.3d 625, 632
(4th Cir. 2009) (internal quotation marks omitted), cert.
denied, 130 S. Ct. 2128 (2010). We have carefully reviewed the
AUSA’s opening and closing statements and find nothing therein
constitutes impermissible vouching. We further conclude the
AUSA did not misstate the law relevant to immunity agreements or
the use of Tax Form Schedule C as relevant to this case.
IV. Reasonableness of Huff’s Sentence
Post-Booker, 2 this court reviews a sentence for
reasonableness, applying an abuse of discretion standard. Gall
v. United States, 552 U.S. 38, 51 (2007); see also United States
v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied, 130 S.
Ct. 290 (2009). This review requires appellate consideration of
both the procedural and substantive reasonableness of a
2
United States v. Booker, 543 U.S. 220 (2005).
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sentence. Gall, 552 U.S. at 51. In determining procedural
reasonableness, this court considers whether the district court
properly calculated the defendant’s advisory Guidelines range,
considered the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2010)
factors, analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
51. If the court finds “no significant procedural error,” it
next assesses the substantive reasonableness of the sentence,
taking “‘into account the totality of the circumstances,
including the extent of any variance from the Guidelines
range.’” United States v. Morace, 594 F.3d 340, 345-46 (4th
Cir. 2010) (quoting Gall, 552 U.S. at 51).
Huff first asserts the district court violated due
process by prohibiting his wife from making a statement prior to
the court pronouncing sentence. We disagree. The district
court allowed Huff to present whatever evidence he deemed
appropriate, and Huff availed himself of this opportunity,
calling one witness. After hearing argument on sentencing, Huff
asked the court to permit his wife to make a statement. At that
point, evidence was closed, and we hold the court was well
within its province to decline Huff’s request. See United
States v. Janati, 374 F.3d 263, 273 (4th Cir. 2004) (describing
the district court’s discretion in managing things such as
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courtroom procedures and admission of evidence as “particularly
broad”).
Huff also argues the district court’s failure to
consider the § 3553(a) sentencing factors renders his sentence
procedurally and substantively unreasonable. Such a claim is
more appropriately considered as a challenge to the procedural
reasonableness of Huff’s sentence. See United States v. Lynn,
592 F.3d 572, 575-76 (4th Cir. 2010). Counsel’s reliance on
several § 3553(a) sentencing factors to support a downward
variance preserved this issue for appellate review. Id. at 578.
Accordingly, our review is for an abuse of discretion. Id. at
581.
The district court did not abuse its discretion in
sentencing Huff. In granting counsel’s request for a downward
variance, the district court expressly adopted the primary (and
strongest) reason counsel advanced to support the variance.
Although we recognize that the court did not address, on the
record, each and every other reason set forth by counsel, we
conclude this does not render Huff’s sentence procedurally
flawed. See United States v. Boulware, 604 F.3d 832, 838-39
(4th Cir. 2010).
We further conclude that Huff’s variance sentence was
substantively reasonable. Considering the totality of the
circumstances surrounding Huff’s crimes and his virtually non-
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existent criminal history, the district court properly exercised
its discretion to vary downward from the Guidelines range by
approximately 29%, and amply justified that variance. See
United States v. Seay, 553 F.3d 732, 742 (4th Cir.) (finding
variance sentence that was a 68% increase above the Guidelines
range reasonable, because the court had adequately explained the
reasons for the variance), cert. denied, 130 S. Ct. 127 (2009).
V. Ineffective Assistance of Counsel
Finally, Huff asserts his attorney provided
ineffective representation during his trial. Unless an
attorney’s ineffectiveness is conclusively apparent on the face
of the record, ineffective assistance claims are not generally
addressed on direct appeal. United States v. Benton, 523 F.3d
424, 435 (4th Cir.), cert. denied, 129 S. Ct. 490 (2008); United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999)
(providing standard and noting that ineffective assistance of
counsel claims generally should be raised by motion under 28
U.S.C.A. § 2255 (West Supp. 2010)). The record in this case
falls far short of this exacting standard.
VI. Conclusion
For the foregoing reasons, we affirm Huff’s
convictions and sentence. Further, we deny as moot the pending
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motions to expedite review and for bond pending appeal. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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