[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 13, 2011
No. 09-16480 JOHN LEY
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 07-00131-CR-01-JEC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ONESSIMUS M. GOVEREH,
a.k.a. Tony Govereh,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 13, 2011)
Before EDMONDSON, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Onessimus Govereh, proceeding pro se, appeals his convictions and
100-month total sentence of imprisonment for submitting fraudulent income tax
returns, in violation of 18 U.S.C. § 287. On appeal, Govereh argues that: (1) 18
U.S.C. § 287 does not apply to claims made under the Internal Revenue Code
(“IRC”); (2) the evidence at trial was insufficient for a reasonable jury to convict
him of violating 18 U.S.C. § 287; (3) the government’s misconduct and improper
statements undermined the fairness and integrity of his trial; and (4) in imposing a
substantively unreasonable sentence, the district court miscalculated the loss
amount, erroneously imposed obstruction-of-justice and role enhancements, and
erroneously ordered him to pay restitution. After careful review, we affirm.
1.
First, we reject Govereh’s argument that 18 U.S.C. § 287 does not apply to
claims made under the IRC. We review questions of statutory interpretation de
novo. United States v. Searcy, 418 F.3d 1193, 1195 (11th Cir. 2005).
The criminal False Claims Act provides that “[w]hoever makes or presents .
. . any claim upon or against the United States, or any department or agency
thereof, knowing such claim to be false, fictitious, or fraudulent, shall be
imprisoned not more than five years and shall be subject to a fine in the amount
provided in this title.” 18 U.S.C. § 287. In the civil context, 31 U.S.C. § 3729
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provides a civil penalty and treble damages against any person who “knowingly
presents, or causes to be presented, a false or fraudulent claim for payment.” 31
U.S.C. § 3729(a)(1)(A). Section 3729 “does not apply to claims, records, or
statements made under the Internal Revenue Code of 1986.” 31 U.S.C. § 3729(d).
The Supreme Court has determined that the term “claim” in § 287 should not
be given a narrow reading. United States v. Neifert-White Co., 390 U.S. 228, 233
(1968). “This remedial statute reaches . . . to all fraudulent attempts to cause the
government to pay out sums of money.” Id.
Here, Govereh’s arguments ignore the Supreme Court’s mandate that 18
U.S.C. § 287 be given a broad interpretation. The plain language of § 287
encompasses fraudulent tax returns by criminalizing any fraudulent claim made
against the United States. Similarly, Govereh’s focus on the improperly verified
tax returns is misplaced. The record clearly indicates that the tax returns were filed
in an effort to cause the IRS to pay refunds, which satisfies the requirements of §
287. Further, Govereh has cited no authority demonstrating that Congress intended
to preempt 18 U.S.C. § 287 either through the Internal Revenue Code or 31 U.S.C.
3729(d), or that § 287 should not be construed to encompass fraudulent tax returns,
and has cited no cases from this Circuit supporting his proposition that tax
violations cannot be prosecuted under § 287. His arguments therefore fail.
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2.
Next, we are unpersuaded by Govereh’s claim that the evidence at trial was
insufficient for a reasonable jury to convict him of violating 18 U.S.C. § 287.
“Sufficiency of the evidence is a question of law that we review de novo.” United
States v. Gupta, 463 F.3d 1182, 1193 (11th Cir. 2006). In reviewing the
sufficiency of the evidence, we consider “the evidence in the light most favorable
to the government.” United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005)
(citation omitted). We also make all reasonable inferences and credibility choices
in favor of the government and the jury’s verdict. Id. We must affirm “unless,
under no reasonable construction of the evidence, could the jury have found the
[defendant] guilty beyond a reasonable doubt.” Id. “The evidence need not
exclude every hypothesis of innocence or be completely inconsistent with every
conclusion other than guilt because a jury may select among constructions of the
evidence.” United States v. Bailey, 123 F.3d 1381, 1391 (11th Cir. 1997).
As the record shows, the government presented extensive documentary and
testimonial evidence showing that: (1) Govereh is listed as the tax preparer on the
14 tax returns which the jury found him guilty of fraudulently submitting to the
government; (2) eight witnesses testified that they met Govereh at Icon Tax
Service, discussed their tax returns with him, and generally understood that
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Govereh was going to be filing their returns; and (3) Kenndric Roberts testified
that Govereh employed him to refer taxpayers to Icon, and that Govereh was the
one person who was authorized to file tax returns at Icon. Moreover, when a
defendant testifies, as Govereh did here, the jury is “permitted to reject” that
testimony and can consider such evidence as substantive evidence of guilt. United
States v. Jiminez, 564 F.3d 1280, 1285 (11th Cir. 2009) (citations omitted). Under
these circumstances, a reasonable jury could have found Govereh guilty of
submitting fraudulent tax returns to the United States. Moreover, Govereh ignores
that the fraudulent returns, regardless of whether they were properly verified, were
filed in an attempt to cause the government to pay out money. Therefore, there
was sufficient evidence for a reasonable jury to find Govereh guilty of violating §
287 as charged.
3.
We also reject Govereh’s claim that the government’s misconduct and
improper statements undermined the fairness and integrity of his trial. We “review
a district court’s evidentiary rulings for abuse of discretion.” United States v.
Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). Where a defendant does not
contemporaneously object to an issue before the district court -- which Govereh
failed to do for the government’s rebuttal comments and other alleged “lies” he
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now complains of -- we review for plain error. United States v. Bernal-Benitez,
594 F.3d 1303, 1316 (11th Cir.), cert. denied, 130 S.Ct. 2123 (2010). Under plain
error review, the error must be plain, must affect the defendant’s substantial rights,
and must “‘seriously affect[] the fairness, integrity or public reputation of judicial
proceedings.’” Id. at 1312 n.6.
To constitute prosecutorial misconduct, a prosecutor’s remarks must be
improper and must prejudicially affect the substantial rights of the defendant.
United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). “A defendant’s
substantial rights are prejudicially affected when a reasonable probability arises
that, but for the remarks, the outcome of the trial would have been different. When
the record contains sufficient independent evidence of guilt, any error is harmless.”
Id. (citation omitted).
Evidence of prior “crimes, wrongs, or acts,” cannot be admitted for the
purpose of proving action in conformity therewith, see Fed.R.Evid. 404(b), though
such evidence can be admitted for other purposes. Id. In certain situations,
evidence of prior bad acts is considered intrinsic to the charged crime and not
governed by Rule 404(b). Evidence of acts other than the offense charged is
considered intrinsic if it is “(1) an uncharged offense which arose out of the same
transaction or series of transactions as the charged offense, (2) necessary to
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complete the story of the crime, or (3) inextricably intertwined with the evidence
regarding the charged offense.” United States v. Veltmann, 6 F.3d 1483, 1498
(11th Cir. 1993) (citations omitted). Evidence will fall under one of those three
categories if it tends to explain the context, motive, and set-up of the crime. See
United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985) (citation omitted).
Generally, the evidence must be “linked in time and circumstances with the
charged crime, or form[ ] an integral and natural part of an account of the crime, or
[be] necessary to complete the story of the crime for the jury.” Id.
Credibility determinations are for the jury, and we typically will not review
such determinations. United States v. Copeland, 20 F.3d 412, 413 (11th Cir.
1994). Where the appellant argues that the jury based its conviction on
inconsistent testimony or incredible government witnesses, he must show the
testimony was “incredible as a matter of law.” United States v. Calderon, 127 F.3d
1314, 1325 (11th Cir. 1997). For testimony to be “incredible as a matter of law,” it
must be unbelievable on its face, i.e., “testimony as to facts that the witness
physically could not have possibly observed or events that could not have occurred
under the laws of nature.” Id. (quotations and alteration omitted).
As for the government’s references to excessive tax preparation fees, the
district court did not abuse its discretion in allowing this testimony. The evidence
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about the fees met all three of the Veltmann requirements. The fees arose out of
Govereh’s charged offenses -- the fraudulent tax returns. The fees were also
inextricably intertwined with the charged offenses, because they showed the jury
how Govereh was able to profit from the scheme. Moreover, the court twice
instructed the jury that Govereh was not on trial for charging excessive fees, and
that the jury should not draw any inferences based on Govereh’s preparation fees.
As for Govereh’s claim that the government’s rebuttal comments about his
personal lifestyle were “irrelevant, prejudicial, and . . . specifically directed to
inflame” the eleven female jurors, the district court did not plainly err in denying
the motion for new trial on this ground. Taken in context, the government’s
comments were not improper. During cross-examination, the government asked
Govereh about the identities of women with whom Govereh had been
photographed. During rebuttal, the government briefly commented on the lifestyle
that Govereh’s criminal activity afforded him. But even if improper, these
comments represented a small part of the extensive case presented by the
government. As discussed above, the record in this case contains sufficient
evidence that Govereh submitted false claims against the United States, in violation
of 18 U.S.C. § 287. Thus, in the face of this independent evidence of guilt, “any
error is harmless.” See Eckhardt, 466 F.3d at 947.
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As for Govereh’s claim that the government “suborned to perjury” when IRS
Agent Wesley Cooper falsely testified that Govereh attempted to flee arrest on
February 15, 2007, we are unpersuaded. At trial, Agent Cooper testified to the
events surrounding Govereh’s arrest, which the jury was free to credit. And while
Govereh now cites to a memorandum that is said to contradict Agent Cooper’s
testimony, the record demonstrates that during cross-examination, Govereh never
questioned Agent Cooper about the memorandum. As a result, Govereh cannot
rely on alleged evidence outside the record to support his contention.
As for Govereh’s claim that the government told some “outright lies” at trial,
rendering his trial unfair and “contribut[ing] to a miscarriage of justice,” the
district court did not plainly err. Even if all the statements were improper, the
cumulative effects of those statements did not render Govereh’s trial unfair. In
fact, each statement represented a small part of a case that, as discussed above,
involved extensive documentary and testimonial evidence. Therefore, in light of
the substantial evidence of Govereh’s guilt, the district did not err, much less
plainly err, when it refused to grant Govereh a new trial.
4.
Finally, we find no merit in Govereh’s challenges to his sentence. “A
district court’s determination regarding the amount of loss for sentencing purposes
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is reviewed for clear error.” United States v. Medina, 485 F.3d 1291, 1303 (11th
Cir. 2007) (quotation omitted). Overall, the court needs only to “make a
reasonable estimate of the loss.” U.S.S.G. § 2B1.1, comment. (n.3(C)). Moreover,
the court’s loss determination is entitled to deference because “[t]he sentencing
judge is in a unique position to assess the evidence and estimate the loss based
upon that evidence.” Id. We review a district court’s factual findings for clear
error and the application of an obstruction of justice enhancement based on those
facts de novo. United States v. Bradberry, 466 F.3d 1249, 1253 (11th Cir. 2006).
We review a sentencing court’s determination of a defendant’s role in the crime for
clear error. United States v. Jennings, 599 F.3d 1241, 1253 (11th Cir. 2010). We
also review for clear error factual findings underlying a restitution order. United
States v. Valladares, 544 F.3d 1257, 1269 (11th Cir. 2008). We review sentences
imposed by the district court for reasonableness using the abuse-of-discretion
standard. See United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).
In this case, the district court did not clearly err in calculating a loss amount
of $400,000. “[I]n calculating the amount of loss, the Guidelines require a district
court to take into account ‘not merely the charged conduct, but rather all “relevant
conduct,” in calculating a defendant’s offense level.’” United States v. Foley, 508
F.3d 627, 633 (11th Cir. 2007) (quoting United States v. Hamaker, 455 F.3d 1316,
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1336 (11th Cir. 2006)). A court cannot speculate concerning the existence of a fact
that permits a more severe sentence under the Guidelines. United States v.
Patterson, 595 F.3d 1324, 1327 (11th Cir. 2010).
As the record shows, IRS Agent Tammy Willingham testified that she had
calculated across all 107 returns the IRS’s exposure due to inflated Telephone
Excise Tax Refund (“TETR”) credits. The IRS’s exposure, based on the inflated
TETR credits, was $469,415. Agent Willingham’s testimony and calculations
indicated that the uncharged returns filed by Govereh also contained inflated TETR
credits. Thus, the district court did not clearly err in calculating the loss amount,
and Govereh’s claim that his loss amount should reflect the jury’s verdict is
unpersuasive, since we have held that sentencing courts should consider all
relevant conduct when determining the attributable loss amount. See Foley, 508
F.3d at 633.
Nor did the district court err in applying a 2-level obstruction of justice
enhancement. Section 3C1.1 of the sentencing guidelines provides for a 2-level
enhancement if “the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of conviction,” and “the
obstructive conduct related to . . . the defendant’s offense of conviction and any
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relevant conduct.” U.S.S.G. § 3C1.1. The enhancement “is not intended to punish
a defendant for the exercise of a constitutional right.” Id., comment. (n.2). An
enhancement is justified if a defendant commits perjury. Id., comment. (n.4(b)).
At Govereh’s sentencing, the district court applied the enhancement after
finding that Govereh “substantially and repeatedly” perjured himself. The court’s
findings coincide with the jury’s, which found Govereh guilty despite his blanket
denials of guilt. Under these circumstances, the court did not err when it applied
the obstruction-of-justice enhancement.
We likewise find no clear error in the district court’s application of a 3-level
enhancement for Govereh’s role in the offense. Under U.S.S.G. § 3B1.1, a three-
level enhancement may be applied if “the defendant was a manager or supervisor
(but not an organizer or leader) and the criminal activity involved five or more
participants or was otherwise extensive.” U.S.S.G. § 3B1.1(b). A participant is a
person who is criminally responsible for the commission of the offense, whether or
not convicted. Id. comment. (n.1). “The government bears the burden of proving
by a preponderance of the evidence that the defendant had an aggravating role in
the offense.” United States v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003).
“[T]he sentencing Guidelines require a district court, at the sentencing stage,
to make independent findings establishing the factual basis for its Guidelines
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calculations. . . . The district court’s factual findings for purposes of sentencing
may be based on, among other things, evidence heard during trial, undisputed
statements in the PSI, or evidence presented during the sentencing hearing.”
Hamaker, 455 F.3d at 1338 (emphasis, citations and quotations omitted).
Here, based on Govereh’s supervision of Kenndric Roberts, and the
evidence that the other participants acted as runners to bring clients to Icon, the
district court did not clearly err when it applied the 3-level role enhancement to
Govereh’s sentence.
The district court also did not err when it ordered Govereh to pay the IRS
restitution. At trial, Agent Willingham testified that the IRS paid out $138,550 on
the tax returns filed by Govereh. Therefore, Govereh’s argument -- that the IRS
did not lose any money, so Govereh should not have to pay it restitution -- is
without merit.
Finally, the sentence the district court imposed was substantively reasonable.
We review a sentence’s substantive reasonableness under the totality of the
circumstances, including “the extent of any variance from the Guidelines range.”
Gall v. United States, 552 U.S. 38, 51 (2007). Sentences outside the Guidelines are
not presumed to be unreasonable. Id. The district court must evaluate all of the §
3553(a) factors when arriving at a sentence, but is permitted to attach “great
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weight” to one factor over others. Id. at 57. Among the § 3553(a) factors are the
need to reflect the seriousness of the offense, to promote respect for the law, to
afford adequate deterrence to criminal conduct, and to protect the public from
further crimes of the defendant. See 18 U.S.C. § 3553(a).
While Govereh argues that, if the district court had been aware of Terra
Dixon’s sentence, it likely would have sentenced him to a lesser term of
imprisonment, Govereh has made no showing that he and Dixon were similarly
situated defendants. Moreover, Govereh’s argument ignores that in large part, the
district court sentenced him based on his extensive history of committing fraud
crimes. In fashioning Govereh’s sentence, the court also emphasized the need to
deter others from committing similar crimes and the need to protect the public
from Govereh, who the court characterized as a “fraud machine.” Under these
circumstances, the court did not abuse its discretion when it sentenced Govereh to
a total of 100 months’ imprisonment.
AFFIRMED.
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