United States v. Pursley

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
January 11, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
v. No. 05-1428
CARL W ILLIA M PURSLEY, JR.,

Defendant-Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D.C. NO . 03-CR-00415-REB)

M arci A. Gilligan, Richilano & Gilligan, P.C., Denver, Colorado, (Patrick L.
Ridley and Robert T. Fishman, Ridley M cGreevy W eisz P.C., Denver, Colorado,
with her on the brief) for Defendant-Appellant.

James C. M urphy, Assistant United States Attorney (W illiam J. Leone, United
States A ttorney, and M atthew T. Kirsch, Assistant Untied States A ttorney, with
him on the brief), Office of the United States Attorney, Denver, Colorado, for
Plaintiff-Appellee.

Before M U RPH Y, A ND ER SO N, and TYM KOVICH, Circuit Judges.

T YM K O VIC H, Circuit Judge.
 I. Introduction

W hile jailed in a Colorado state prison, Carl W illiam Pursley was indicted

by the United States for tax fraud. The government alleged that Pursley filed

fraudulent tax returns on behalf of himself and other prisoners and received

refund payments as a result. He was subsequently convicted by a federal jury on

one count of conspiracy to defraud the United States, in violation of 18 U.S.C.

§ 371, and two counts of aiding and abetting the preparation of false tax returns,

in violation of 26 U.S.C. § 7206(2).

On appeal, Pursley raises four claims challenging his conviction and

sentence. The district court erred by (1) failing to dismiss the case due to

violations of the Interstate A greement on Detainers A ct; (2) refusing to sever his

trial from that of a co-defendant; (3) allowing the jury verdict to stand despite

insufficient evidence to support the conspiracy conviction and, relatedly,

contributing to jury confusion by improperly instructing them on the conspiracy

count; and (4) violating the Double Jeopardy Clause while imposing consecutive

sentences for different crimes that w ere supported by the same evidence.

Taking jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291,

we AFFIRM .

II. Factual Background

Carl Pursley and his co-defendant, W illiam W ardell, were indicted by the

United States on August 20, 2003, on various counts of tax fraud. Pursley was

specifically charged with conspiring to defraud the Internal Revenue Service by

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assisting in the preparation of false tax returns for the purpose of fraudulently

obtaining refunds based on the Earned Income Credit. At the time the federal

indictment was filed, Pursley and W ardell were prisoners of Colorado, serving

sentences on prior convictions.

To obtain his availability for trial, the United States lodged a detainer

against Pursley on August 21, 2003, and obtained custody by filing a writ of

habeas corpus ad prosequendum on October 9, 2003. Pursley was transferred to

another facility under federal control where he remained for twenty-two months

while he awaited trial on the tax fraud charges. During that period, Colorado

filed a new indictment against Pursley in an unrelated criminal case.

Accordingly, Colorado sought his presence in state court for preliminary

proceedings. On at least two occasions, the state filed w rits of habeas corpus ad

prosequendum to obtain temporary custody to escort Pursley to court. Each time,

he was returned to federal prison the same day. At no time was Pursley returned

to a Colorado corrections facility to resume serving his initial state prison

sentence.

On April 25, 2005, Pursley moved to dismiss the federal indictment with

prejudice on the ground that the United States had violated the “anti-shuttling”

provision of the Interstate Agreement on Detainers Act in releasing him to the

temporary custody of Colorado. The district court denied his motion, and the

case proceeded to trial. Before it began, Pursley moved to have his trial severed

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from that of his co-defendant, alleging that they would present antagonistic

defenses. The district court denied this motion as w ell.

On M ay 25, 2005, a federal jury convicted Pursley on one count of

conspiracy to defraud the United States and two counts of aiding and abetting the

preparation of false tax returns. He was sentenced to 96 months

incarceration— 60 months imprisonment on the conspiracy count to be served

consecutively with 36-month concurrent sentences for each count of aiding and

abetting. He appeals both his conviction and sentence.

III. Discussion

Pursley raises four issues on appeal. W e address each in turn.

A. Interstate Agreement on D etainers

Pursley argues the United States violated the Interstate Agreement on

Detainers (IAD or Agreement), 18 U.S.C. App. § 2 [hereinafter IAD]; Colo. Rev.

Stat. § 24-60-501 (2004), by transferring him from a state to federal prison and

then allowing state officials to escort him to state proceedings on new state

charges while he was in federal custody. Accordingly, he contends that the

district court erred by failing to dismiss the federal indictment and that we should

reverse his conviction.

The IAD creates among its contracting parties uniform procedures for

lodging and executing a detainer, “a legal order that requires a State in which an

individual is currently imprisoned to hold that individual . . . so that he may be

tried by a different State for a different crime.” Alabama v. Bozeman, 533 U.S.

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146, 148 (2001). For purposes of the IAD, the state in which a prisoner is

initially serving a sentence is classified as the “sending state” (here, Colorado),

and the state that subsequently indicts the prisoner and obtains custody is the

“receiving state” (here, the United States). 1 IAD, Art. II(b)–(c). The Agreement

“provides for expeditious delivery of the prisoner to the receiving State for trial

prior to the termination of his sentence in the sending State” and “seeks to

minimize the consequent interruption of the prisoner’s ongoing prison term.”

Bozeman, 533 U.S. at 148. The Agreement is based on the premise that prison

treatment and rehabilitation programs are negatively impacted when a prisoner is

indicted and transferred to a new jurisdiction and then returned to the original

place of imprisonment before trial is had on the new charges. See IA D, Art. I.

The Agreement authorizes transfer of a prisoner from a sending state to a

receiving state as follow s:

The appropriate officer of the jurisdiction in which an untried indictment
. . . is pending [i.e., the receiving state] shall be entitled to have a prisoner
against whom he has lodged a detainer and w ho is serving a term of
imprisonment in any party State made available in accordance with article
V (a) hereof upon presentation of a written request for temporary custody
or availability to the appropriate authorities of the State in which the
prisoner is incarcerated [i.e, the sending state].

Id. at Art. IV(a). The A greement protects the prisoner from excessive transfers

through the so-called “anti-shuttling” provision, which states,

1
The United States and Colorado are party “States” to the Agreement.
IA D § 2; Colo. Rev. Stat. § 24-60-501 (2006),

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 If trial is not had on any indictm ent . . . contemplated hereby prior to
the prisoner’s being returned to the original place of imprisonment to
article V(e) hereof, such indictment . . . shall not be of any further force
or effect, and the court shall enter an order dismissing the same with
prejudice.

Id. at Art. IV(e). Accordingly, by its express terms, the IAD is violated under

two conditions— when a prisoner, who is serving a sentence in the sending state

and indicted by the receiving state, is (1) transferred to the receiving state based

on its lodging a detainer against him and requesting custody, id. at Art. IV(a), and

then (2) returned to the “original place of imprisonment” before standing trial on

the untried indictment, id. at Art IV(e).

In this case, the first condition of an IAD violation was clearly met. While

serving his sentence in Colorado state prison, Pursley was indicted by the United

States, which lodged a detainer against him and, by means of a writ of habeas

corpus ad prosequendum, obtained custody and transferred him to a federal

facility. See U nited States v. M auro, 436 U.S. 340, 348 (1978) (holding the

combination of lodging a detainer and obtaining custody by means of a writ of

habeas corpus ad prosequendum triggers application of the IA D). 2

2
The government contends that because Colorado only filed a writ of
habeas corpus ad prosequendum to obtain custody over Pursley from the federal
government, the IAD is not implicated. W hile the Supreme Court has held that a
writ of habeas corpus ad prosequendum by itself does not trigger the IA D, see
M auro, 436 U .S. at 349, the IAD was already triggered by the federal
government’s (i.e., the receiving state’s) actions in this case and the anti-shuttling
provision is thus applicable. The government’s argument would only have
relevance if the federal government was the sending state.

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 The principal issue here is whether the second condition of an IAD

violation was met. The prosecution argues Pursley was never “returned to the

original place of imprisonment” within the meaning of the IAD because he was

never sent back to a Colorado prison. Pursley objects to this literal reading of the

text and argues that the anti-shuttling provision be interpreted to include any type

of custody over the prisoner by the sending state.

Pursley argues that the Supreme Court in Alabama v. Bozeman interpreted

the IAD to require dismissal of pending charges by the receiving state when a

prisoner is placed in the custody of the sending state, even in circumstances

where a prisoner’s custody is of short duration.

In that case, the prisoner, Bozeman, was serving time in a federal prison

when Alabama indicted him on an unrelated crime. Bozeman, 533 U.S. at 151.

Alabama lodged a detainer against him and subsequently obtained custody over

him. The state then transported him approximately 80 miles to a county jail,

where he spent the night before appearing for his arraignment the next morning.

He was returned to federal prison that evening and resumed serving his original

sentence.

At the outset, the Supreme Court acknowledged, “Alabama does not deny a

violation of A rticle IV(e) as literally interpreted, for it concedes that its officials

‘returned’ Bozeman to his ‘original place of imprisonment,’ before Bozeman’s

county court ‘trial’ was ‘had.’” Id. at 152 (emphasis in original). The Court

rejected Alabama’s argument that spending one night in state prison constituted

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only a “de minimus” or “technical” violation. Id. at 153. Rather, the C ourt

reasoned, “every prisoner arrival in the receiving State, whether followed by a

very brief stay or a very long stay in the receiving State, triggers IV(e)’s ‘no

return’ requirement.” Id. at 154 (emphasis in original). In other words, Article

IV(e)’s anti-shuttling provision applies whenever a prisoner is provided to a

receiving state pursuant to a detainer. The length of the prisoner’s custody by the

receiving state has no bearing on the operation of the “no return” requirement.

Accordingly, the Court concluded, the Alabama charges should have been

dismissed.

Pursley’s attempt to compare his case to Bozeman is unpersuasive because

he was not “returned to [his] original place of imprisonment” under A rticle IV (e).

In Bozeman, the prisoner w as serving time in a federal penitentiary under a

federal sentence. After his short foray into state court and prison pursuant to a

detainer, Bozeman was returned to the same federal prison to resume serving his

original federal sentence. The Supreme Court has held that this is a clear

violation of Article IV(e). 3 In this case, Pursley was never returned to Colorado

to resume serving his original state sentence. Instead, his only trip back into

Colorado state jurisdiction was to answer a third set of state charges unrelated to

3
Pursley’s reliance on United States v. Kelley, 300 F. Supp. 2d 224 (D .
M ass. 2003), is equally unavailing considering the district court in that case also
found the receiving state shuttled the defendant back to the sending state to
resume serving his original sentence prior to trial being had. Id. at 233. This is
not the case here.

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his original sentence or federal charges. He never was transferred to the Colorado

Department of Corrections to begin anew his service of his original state

sentence. Furthermore, the one-day excursion to the Colorado state courthouse

for arraignment was only by chance in Colorado, the state of his original

imprisonment. If any other state, such as W yoming, had asked the federal

government to provide Pursley for a one-day arraignment under similar

circumstances, we do not see how this would have violated the anti-shuttling

provision.

W e note that our interpretation is supported by the plain language of the

anti-shuttling provision and the IAD’s purpose. First, Article IV(e) applies when

the prisoner is “returned . . . to the original place of imprisonment pursuant to

article V(e).” IAD (emphasis added). Article V(e) provides that, “[a]t the earliest

practical time consonant with the purposes of this agreement, the prisoner shall be

returned to the sending State.” Id. Read together, these words suggest that the

prisoner must be sent back to recommence serving his original sentence to trigger

the anti-shuttling provision. Under Article V(e), a prisoner should be returned to

the sending state to resume his original sentence following the disposition of the

receiving state’s trial. Article V(e), on its face, does not contemplate other

reasons to send a prisoner back to the sending state.

Second, the purpose of the IAD’s anti-shuttling provision is to minimize

the uncertainties attendant with outstanding charges which interfere with a

prisoner’s rehabilitation and treatment programs and to encourage the expeditious

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and orderly disposition of such charges. See IAD, Art. I. As we have said,

Congress did not want prisoners to “have programs of treatment and rehabilitation

obstructed by numerous absences in connection with successive proceedings

related to pending charges in another jurisdiction.” United States v. Wilson, 719

F.2d 1491, 1494 (10th Cir. 1983). The mere temporary transfer of a prisoner to a

different jurisdiction to answer pending charges while in the custody of a

receiving state does not implicate these concerns so long as it does not

impermissibly lengthen a prisoner’s stay in the receiving state. 4 W here a transfer

is of short duration and does not interrupt trial proceedings in the receiving state

in violation of the IAD’s other provisions, as is the case here, a prisoner spends

no additional time away from the sending state and, thus, there can be no impact

on a prisoner’s rehabilitative programs and treatment in the sending state. On the

other hand, the expeditious resolution of untried charges in a different

jurisdiction, such as the third set of Colorado charges Pursley faced, is fully

consistent w ith the purposes of the IA D.

For these reasons, we conclude that the IA D’s anti-shuttling provision is

not triggered by the circumstances presented here. 5

4
A receiving state must comm ence trial on untried indictments within one
hundred twenty days from the arrival of the prisoner. IAD, Art. IV(c).
5
The government alternatively argues that Pursley waived his IAD
argument by failing to raise it before the pre-trial motions deadline had passed.
Pursley responds by contending that this issue is jurisdictional and non-w aivable.
W e had not addressed whether violations of the IAD constitute jurisdictional
claims on direct appeal. Nevertheless, we have stated, “Absent special
(continued...)

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B. Trial Severance

Pursley next argues the district court comm itted reversible error by failing

to grant his motion to sever his trial from that of his co-defendant, W endel

W ardell. He contends severance was necessary because the two defendants had

planned to present antagonistic defenses and the joint trial precluded him from

fully pursuing his theory of defense.

W hen considering a motion for severance, a trial court engages in a three

step inquiry. First, it must determine w hether the defenses presented are “so

antagonistic that they are mutually exclusive.” United States v. Peveto, 881 F.2d

844, 857 (10th Cir. 1989). Second, because “[m]utually antagonistic defenses are

not prejudicial per se,” a defendant must further show “a serious risk that a joint

trial would compromise a specific trial right . . . or prevent the jury from making

a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S.

534, 539 (1993). Third, if the first two factors are met, the trial court exercises

its discretion and “weigh[s] the prejudice to a particular defendant caused by

joinder against the obviously important considerations of economy and expedition

in judicial administration.” Peveto, 881 F.2d at 857. W here the trial court

5
(...continued)
circumstances, violations of the [IAD] are not grounds for collateral attack on a
federal conviction and sentence” because “rights created by the [IAD] are
statutory, not fundamental, constitutional, or jurisdictional in nature.”
Greathouse v. United States, 655 F.2d 1032, 1034 (10th Cir. 1981). Because we
have concluded the government’s conduct did not implicate the IAD in this case,
we need not answer w hether violations of its provisions may be waived.

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ultimately denies severance, its decision will be reversed only where the

defendant has demonstrated an abuse of discretion. United States v. Hayes, 861

F.2d 1225, 1231 (10th Cir. 1988).

According to Pursley, his theory of defense at trial was that he never

prepared or assisted in the preparation of the relevant tax returns. He hoped to

persuade the jury that (1) although funds were deposited in his account and spent,

(2) he was not aware of how the money arrived, (3) he did not have any

knowledge of tax returns filed in his name, nor (4) was he ever employed by

Cimmaron Farms, the company to which his income was attributed on the returns.

W ardell’s defense, on the other hand, was that the tax forms were legitimate— that

Pursley had participated in their preparation, had indeed been employed by

Cimmaron Farms, and was properly entitled to receipt of Earned Income Credit

funds. Thus, while Pursley merely argued no crime was comm itted by him,

W ardell maintained no crime was comm itted at all.

Applying these factors, w e conclude the district court did not abuse its

discretion in declining to sever the trial. Even though Pursley could establish that

the pair’s defenses w ere mutually exclusive, we find no actual prejudice to

Pursley under the second factor.

W e are satisfied that Pursley’s and W ardell’s defenses w ere sufficiently

exclusive and antagonistic under the first factor. 6 Defenses are mutually

6
The district court found that Pursley’s and W ardell’s defenses were not
mutually exclusive. Dist. Order, vol. I, doc. 643, at 2–3. In doing so, we believe
(continued...)

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antagonistic if “the conflict between codefendants’ defenses [is] such that the

jury, in order to believe the core of one defense, must necessarily disbelieve the

core of the other.” United States v. Linn, 31 F.3d 987, 992 (10th Cir. 1994). In

other words, defendants must show that “the acceptance of one party’s defense

would tend to preclude the acquittal of the other, or that the guilt of one

defendant tends to establish the innocence of the other.” Peveto, 881 F.2d at 857

(holding mutually exclusive defenses where one defendant claimed to be

preparing to be an informant and invited the other defendant, a purported drug

dealer, to his house to gather information, while the other defendant claimed to be

innocently at the house and held against his will by the first defendant).

A jury could not simultaneously believe Pursley’s and W ardell’s theories of

defense. Pursley either worked at Cimmaron Farms or he did not. He either

participated in the preparation and filing of tax returns or he did not. If the jury

believed that Pursley had no knowledge of the tax refunds and had no part in

Cimmaron Farms, then it would necessarily have to disbelieve W ardell’s story

that he and Pursley were legitimately entitled to file tax refunds based on their

employment by Cimmaron Farms. Pursley’s legitimate participation in the

Cimmaron Farms enterprise was a core element of W ardell’s defense theory.

W ithout it, W ardell’s defense would simply collapse, casting serious doubts on

6
(...continued)
that the district court conflated the first “mutually exclusive” factor and the
second “prejudice” factor. W e find that the district court’s analysis is better
placed under considerations of prejudice, rather than on antagonism.

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W ardell’s claim of innocence. This is simply not a case where “the jury could

have believed all of Defendants’ theories and acquitted all of them.” See United

States v. Linn, 31 F.3d 987, 992 (10th Cir. 1994) (finding no mutual antagonism).

Accordingly, we find these defenses are sufficiently antagonistic under the first

factor.

Nevertheless, Pursley has failed to demonstrate prejudice under the second

factor. To establish prejudice, a defendant must point to a “specific trial right”

that was compromised or show the jury was “prevent[ed] . . . from making a

reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539; see also

United States v. M cClure, 734 F.2d 484, 488–89 (10th Cir. 1984). Pursley argues

prejudice must be presumed because “[w ]hen mutually exclusive defenses are

presented there is a chance that the jury will infer from the conflict the guilt of

both parties.” Peveto, 881 F.2d at 857. Pursley contends that, on this basis, his

defense was less likely to be successful in a joint trial than a severed trial and,

because of this, he opted not to present certain evidence at trial.

W e are not persuaded that this alone will constitute prejudice for purposes

of trial severance. “[I]t is w ell settled that defendants are not entitled to

severance merely because they may have a better chance of acquittal in separate

trials.” Zafiro, 506 U.S. at 540 (emphasis added); see also M cClure, 734 F.2d at

488 (“W e have . . . held that severance is not required simply because separate

trials might have offered a better chance for acquittal to one or more of the

accused.”). Despite their differing theories of defense, nothing prevented Pursley

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from presenting evidence to support his theory even if it was inconsistent with

W ardell’s defense.

Second, while Pursley’s theory may establish prejudice to W ardell, it did

not necessarily prejudice Pursley’s defense. As the district court noted in denying

the severance motion,

Both Pursley’s and W ardell’s proposed theories of defense tend to
exonerate Pursley of wrongdoing. Under Pursley’s theory, he had no
knowledge of or involvement in the alleged scheme to defraud the
governm ent by filing false tax returns. Under W ardell’s theory, the tax
returns filed in Pursley’s name w ere not fraudulent. If the jury believes
either theory, it cannot find Pursley guilty of tax fraud.

Dist. Order, vol. I, doc. 643, at 2–3. Pursley’s problem in the case was the

lack of evidence to support his theory of defense, not his misfortune of trial

with W ardell.

W e therefore agree with the district court that Pursley cannot

demonstrate prejudice from the failure to sever the trial.

Pursley also argues this court should not defer to the district court’s

discretion here because it failed to explicitly engage in the third step of our

inquiry— weighing prejudice to the defendant against considerations of judicial

economy. Yet, the district court found no prejudice at all, leaving nothing to

balance in this step. 7

7
Even assuming Pursley could successfully demonstrate prejudice,
severance would not be compelled because “the tailoring of the relief to be
granted, if any, [is left] to the district court’s sound discretion.” Zafiro, 506 U.S.
at 539; see also United States v. Scott, 37 F.3d 1564, 1579–80 (10th Cir. 1994).
“The decision to grant severance and order separate trials is within the sound
(continued...)

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 In sum, the district court’s decision is supported by the facts of this case

and, in any event, does not warrant a conclusion that it abused its discretion in

trying Pursley and W ardell together.

C. Sufficiency of Evidence and Jury Instruction on C onspiracy C harge

Pursley next claims that the jury’s verdict on the conspiracy count should

be overturned because (1) the evidence was insufficient to support the verdict,

and (2) the jury instruction on the conspiracy charge misled the jury.

(1) Sufficiency of the Evidence. W here a defendant claims the evidence

was insufficient to convict, we examine the record in the light most favorable to

the government and will only reverse where, based on the direct and

circumstantial evidence presented and all reasonable inferences and credibility

determinations drawn therefrom, no reasonable jury could find the defendant

guilty beyond a reasonable doubt. United States v. Small, 423 F.3d 1164, 1182

(10th Cir. 2005); United States v. Pedraza, 27 F.3d 1515, 1524 (10th Cir. 1994).

To demonstrate conspiracy, the government must prove “(1) agreement

with another person to violate the law; (2) knowledge of the essential objectives

of the conspiracy; (3) knowing and voluntary involvement; and

(4) interdependence among the alleged co-conspirators.” United States v.

7
(...continued)
discretion of the trial court and its decision will not ordinarily be reversed in the
absence of a strong showing of prejudice.” Hayes, 861 F.2d at 1231 (internal
quotations omitted). Particularly “in a conspiracy trial it is preferred that persons
charged together be tried together.” United States v. Ray, 370 F.3d 1039, 1045
(10th Cir. 2004). Consequently, “[t]he defendant’s burden to show an abuse of
discretion is a difficult one.” Hayes, 861 F.2d at 1231.

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Johnson, 12 F.3d 1540, 1545 (10th Cir. 1993). The charges were based on

nineteen tax returns, including three filed in Pursley’s name, two filed in

W ardell’s name, and one filed in the name of Cimmaron Farms, the ostensible

employer of Pursley (at least, according to his tax returns). The remaining

thirteen returns were filed in the names of nine inmates imprisoned at the same

jail as Pursley and W ardell. Pursley contends, although acknowledging the

existence of evidence that he had participated in some of the acts included in the

conspiracy, the government nevertheless did not prove he “participated in the

broad, single conspiracy charged in the indictment.” Aplt. Br. at 8. Instead, he

argues the government established his connection to W ardell but failed to

establish any connection with the remaining inmates. Thus, he concludes he

cannot be convicted for a conspiracy that includes the filing of all nineteen tax

returns.

Pursley’s argument appears to be based on one of two premises, both of

which are false. One possibility is that Pursley is assuming all individuals whose

names were listed on the false tax returns were co-conspirators. Accordingly,

because the evidence at trial tended to show Pursley’s association with W ardell

but not with the nine inmates listed on the remaining tax returns, he could be

arguing the government failed to prove his interdependence with those nine

individuals. Nevertheless, only Pursley and W ardell were charged with

conspiracy. The flaw here is that the government did not allege a broader

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conspiracy involving additional co-conspirators. It only charged Pursley and

W ardell with conspiring to file numerous false returns involving other inmates.

Alternatively, Pursley’s argument could be that direct evidence showing a

connection between himself and each of the nine inmates listed on the tax returns

was necessary for a conviction. He could be contending that such a showing is

required for a reasonable jury to believe his involvement in the preparation of the

first six tax returns (for which he concedes evidence exists) extended to the

preparation of the remaining thirteen tax returns. Such an argument is wrong. It

is well established that the government need not prove its case by direct evidence

alone. See, e.g., United States v. Young, 954 F.2d 614, 618 (10th Cir. 1992)

(“Because criminal conspiracies by their nature are generally secret, often

carefully concealed and may even be unarticulated, conspiracy may be found

based solely upon circumstantial evidence.”).

Here, the government presented direct evidence of his participation in the

preparation of some of the false tax returns (e.g., arrival of funds in his bank

account) and circumstantial evidence of his participation in the preparation of the

remaining false tax returns. The fact that some evidence was circumstantial does

not bar a reasonable jury from convicting him as to the conspiracy alleged in the

indictment. Nor would it be necessary to prove he performed overt acts in

furtherance of each aspect of the conspiracy so long as the government

sufficiently proved that he conspired with W ardell in the tax fraud scheme and at

least one of them engaged in one overt act. See United States v. Dago, 441 F.3d

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1238, 1242 n.1 (10th Cir. 2006) (finding that the overt act requirement of 18

U.S.C. § 371 is satisfied by “any act to effect the object of the conspiracy”).

W e, accordingly, hold that a reasonable jury could have found Pursley

guilty of conspiracy beyond a reasonable doubt.

(2) Jury Instructions. Pursley also argues the district court erred in failing

to provide proper jury instructions on conspiracy. He contends the instructions

were confusing because they failed to distinguish between the portion of the

charged conspiracy upon which the government had direct evidence (preparation

of tax returns listing the names and affiliates of Pursley and W ardell) and the

remainder of the conspiracy upon which the government had only circumstantial

evidence (the remaining tax returns listing the names of additional inmates). W e

perceive no incongruence between the charged and proven conspiracy. Likewise,

we find no instruction is necessary to parse whether a particular allegation is

supported by direct or circumstantial evidence.

In sum, the evidence presented at trial was sufficient to support the jury’s

conviction, and the jury was properly instructed by the district court.

D. Double Jeopardy

Finally, Pursley argues that his sentence is unlawful because the district

court violated the Double Jeopardy Clause of the Fifth Amendment by imposing

consecutive sentences on offenses that were proven by identical facts. The

Constitution provides that no person shall “be subject to the same offense to be

tw ice put in jeopardy of life or limb.” U.S. C ONST ., amend. V. Pursley contends

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that the same evidence supports his convictions (1) for conspiracy, and (2) for

aiding and abetting the preparation of false tax returns and, therefore, concludes

that “there is no practical or substantive distinction” between the two crimes in

this case. Aplt. Br. at 26–27.

At the outset, we note that this issue was not raised below. Because this

question was not presented to the district court, we apply a plain error standard of

review. United States v. Battle, 289 F.3d 661, 665 (10th Cir. 2002). Plain error

“occurs when there is (1) error, (2) that is plain, which (3) affects substantial

rights, and which (4) seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Lopez-Flores, 444 F.3d 1218, 1222

(10th Cir. 2006).

Pursley’s argument fails the first step because the district court comm itted

no error. In reviewing a double jeopardy claim, the case law is clear, “[W ]here

the same act or transaction constitutes a violation of two distinct statutory

provisions, the test to be applied [for double jeopardy purposes] is whether each

provision requires proof of an additional fact which the other does not.”

Blockburger v. United States, 284 U.S. 299, 304 (1932); United States v. M alone,

222 F.3d 1286, 1293 (10th Cir. 2000). W hen each offense requires proof of a fact

not essential to the other, the charges are not identical and the accused can be

charged, tried and convicted of both offenses even though the charges arise out of

the same acts. Goldsmith v. Cheney, 447 F.2d 624, 627 (10th Cir. 1971).

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Consequently, we look to the elements of the two crimes for which Pursley was

convicted to determine whether a double jeopardy violation exists.

Conspiracy and aiding and abetting a crime are different criminal acts.

Goldsm ith, 447 F.2d at 628 (finding no double jeopardy violation after

prosecutions for both offenses). It is “well settled that commission of a

substantive offense and a conspiracy to commit it are separate crimes because the

essence of a conspiracy charge is an agreement to commit a substantive offense.”

United States v. Johnson, 977 F.2d 1360, 1371 (10th Cir. 1992) (internal

quotations omitted). Pursley was charged with conspiracy to commit tax fraud

which requires “a conspiracy, agreement, or understanding to violate the law. . .

by two or more persons[.]” Instruction No. 19, vol. I, doc. 676. Thus, the crime

of conspiracy is completed when an agreement has been made and an overt act to

further the unlawful design has been performed. Goldsm ith, 447 F.2d at 628.

The substantive offense of aiding and abetting, in contrast, requires no agreement

to comm it the unlawful act. “The epitome of an accessory charge is to aid,

counsel, or assist another in the commission of a criminal act; it does not depend

upon an agreement or conspiracy to perform that act.” Id.

Pursley nonetheless contends that a conviction for aiding and abetting in

this case necessarily requires an agreement. That contention is incorrect. The

elements of aiding and abetting require that Pursley “aided in, assisted in,

procured, counseled, or advised” in the filing of tax returns; that the return falsely

stated material information; and that Pursley knew of the falsity and acted

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willfully. See Instruction No. 31, vol. I, doc. 676. 8 None of these elements

demand proof that he entered into a knowing agreement with others to comm it the

crime. In this case, the jury was instructed that, “It is not necessary that the

government prove that the falsity or fraud [involving the tax return] was with the

knowledge or consent of the person authorized or required to present such

return.” Id. This is consistent with our case law stating that an agreement is not

an element of the crime of aiding and abetting. See, e.g., Pereira v. United

States, 347 U.S. 1, 11 (1954) (“Aiding, abetting and counseling are not terms

which presuppose the existence of an agreement.”); Goldsm ith, 447 F.2d at 628.

W hile Pursley and W ardell may have acted in concert in comm itting tax fraud, the

8
The entire jury instruction read,

In order to sustain its burden of proof for the crime of aiding and abetting
the preparation or presentation of false tax returns against defendant
PU RSLEY as charged in Counts 5 and 6 of the indictment, . . . the
government must prove each and all of the following five (5) essential
elem ents beyond a reasonable doubt:
(1) That defendant PU RSLEY aided in, assisted in, procured, counseled,
or advised the preparation or presentation of a return as described in the
indictment . . . in connection with any matter arising under the internal
revenue laws; and
(2) That this return falsely stated information as described in the
indictment, . . .; and
(3) That defendant PURSLEY knew that one or more of the statements
in the return was false; and
(4) That the false statement was material; and
(5) That defendant PURSLEY acted willfully.
It is not necessary that the government prove that the falsity or fraud was
with the knowledge or consent of the person authorized or required to
present such return.

Instruction No. 31, vol. I, doc. 676.

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convictions for aiding and abetting do not necessarily require agreement. The

convictions, therefore, do not run afoul of double jeopardy.

In sum, even though Pursley’s multiple convictions arose from the same

criminal course of action, each crime required proof of a fact not required to

convict for the other crime. Accordingly, we find no error in the district court’s

order of consecutive sentences for the different crimes.

IV. Conclusion

For the foregoing reasons, Pursley’s convictions and sentences are

A FFIRME D.

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