United States v. Floyd

United States Court of Appeals
For the First Circuit

No. 12-2229

UNITED STATES OF AMERICA,

Appellee,

v.

CATHERINE FLOYD,

Defendant, Appellant.
____________________

No. 12-2231

UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM SCOTT DION,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Howard, Selya and Stahl,

Circuit Judges.

Joan M. Griffin for appellant Floyd.
John M. Goggins for appellant Dion.
Damon William Taaffe, Attorney, Tax Division, U.S. Dep't of
Justice, with whom Kathryn Keneally, Assistant Attorney General,
Frank P. Cihlar, Chief, Criminal Appeals & Tax Enforcement Policy
Section, Gregory Victor Davis, Attorney, Tax Division, and Carmen
M. Ortiz, United States Attorney, were on brief, for appellee.

January 7, 2014

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 SELYA, Circuit Judge. Over two centuries ago, Benjamin

Franklin famously wrote that "in this world nothing can be said to

be certain, except death and taxes." Apparently unwilling to

accept this conventional wisdom, defendants-appellants Catherine

Floyd and William Scott Dion devised and participated in elaborate

conspiracies to defraud the United States of tax revenues (or so

the government alleges). A jury validated the government's

allegations, and the defendants, ably represented, now pursue

several claims of error. After careful consideration of this

asseverational array, we affirm.

I. OVERVIEW

This case began when a federal grand jury, sitting in the

District of Massachusetts, indicted the defendants (who are husband

and wife) and five others on a multiplicity of charges. The

defendants and one such coconspirator, Charles Adams, were tried

jointly.1 Following a 17-day trial, a jury convicted the

defendants of one count of conspiracy to defraud the United States

of payroll taxes (count 1), one count of conspiracy to defraud the

United States of income taxes (count 2), and one count each of

endeavoring to obstruct and impede the Internal Revenue Service

(IRS) (counts 4 and 5).

1
These appeals were argued in conjunction with Adams's appeal
(No. 12-2276). Because Adams's appeal raises a discrete set of
issues, we will decide it in a separate opinion, to be issued
shortly.

-3-
 The government's case in chief centered on two schemes

allegedly orchestrated by the defendants. The first involved the

evasion of payroll taxes by third-party employers. We limn its

mechanics.

Employers are required to withhold Social Security,

Medicare, and federal income taxes from their employees' paychecks

and to remit those payroll taxes to the IRS, along with matching

contributions for Social Security and Medicare. See 26 U.S.C.

§ 3402. These remittances, and the forms that accompany them, have

a dual purpose: they generate revenue for the Treasury and supply

information about the tax liabilities of employers and employees.

Notably, these withholding requirements generally apply only with

respect to employees, not with respect to independent contractors.

It is trite but true that where there are taxes, there

are individuals who seek to evade them. The government alleges

(and the jury found) that the defendants and others set up and

operated a series of entities to facilitate this kind of fraud.

One of these entities was Contract America — a company

that Adams ran. Instead of paying its employees directly, a client

firm would funnel money to Contract America, which then paid the

client's employees (or those of them who agreed to participate in

the fraud) under the table. Through this contrivance, both the

client firm and the participating employees were able to hide from

the IRS.

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 Tax evasion is a dangerous tango, and not all employees

want to dance. The government alleges that the defendants

complemented the services of Contract America by operating a front

company (Talent Management) to work with employees who wanted to

stay on the straight and narrow. A firm using this service would

funnel money to Talent Management, which would comply with the

withholding requirements before paying the affected employees.

This made it look as if Talent Management was actually employing

the workers and allowed the client firm to remain invisible.

The second scheme involved the provision of sub rosa

"warehouse banking" services. In this operation, the defendants

commingled their own funds and the funds of many clients in nominee

bank accounts. The purpose of this commingling was to confound the

IRS about the source of the funds.

The defendants executed the warehouse banking scheme

through a company called Your Virtual Office (YVO), its successor

Office Services, and related entities. Clients delivered funds to

the defendants, who deposited the funds into a constellation of

accounts that the defendants controlled. On request, the

defendants would use the deposited funds to defray a client's

expenses or to deliver cash. A software program would track the

flow of funds.

Even after the defendants closed their warehouse banking

operation, they urged a coconspirator (Gail Thorick) to continue

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the business. Thorick did so, through a firm called Calico

Management.

As a capstone to the indictment, the government charged

the defendants with endeavoring to impede the IRS by concealing

their ill-gotten gains. The nub of these charges is the

government's contention that the defendants operated their

warehouse banking scheme so as to obstruct the IRS's assessment of

their personal tax liability.

II. ANALYSIS

On appeal, the defendants argue that there was

insufficient evidence to support their convictions; that certain

evidence should have been suppressed; that they should not have

been tried jointly with Adams; and that the IRS's failure to comply

with the Federal Register Act should have engendered dismissal of

counts 4 and 5. In addition, Dion alone challenges his sentence.

We examine these assignments of error sequentially.

A. Sufficiency of the Evidence.

"We review preserved objections to evidentiary

sufficiency de novo." United States v. Gobbi, 471 F.3d 302, 308

(1st Cir. 2006). In conducting this tamisage, we "must canvass the

evidence (direct and circumstantial) in the light most agreeable to

the prosecution and decide whether that evidence, including all

plausible inferences extractable therefrom, enables a rational

factfinder to conclude beyond a reasonable doubt that the defendant

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committed the charged crime." United States v. Ortiz de Jesus, 230

F.3d 1, 5 (1st Cir. 2000) (internal quotation marks omitted). We

will uphold the jury's verdict as long as it "is supported by a

plausible rendition of the record." United States v. Ortiz, 966

F.2d 707, 711 (1st Cir. 1992).

The defendants challenge the sufficiency of the evidence

across the board. We proceed count by count.

1. Count 1: The Payroll Tax Conspiracy. Count 1

implicates 18 U.S.C. § 371, which criminalizes any conspiracy "to

defraud the United States, or any agency thereof in any manner or

for any purpose." To sustain a conviction under this statute, "the

government must furnish sufficient evidence of three essential

elements: an agreement, the unlawful objective of the agreement,

and an overt act in furtherance of the agreement." United States

v. Hurley, 957 F.2d 1, 4 (1st Cir. 1992). It also must establish

"the knowing participation of each defendant in [the] conspiracy."

United States v. Mubayyid, 658 F.3d 35, 57 (1st Cir. 2011). But

the government need not show an explicit agreement. See United

States v. Muñoz-Franco, 487 F.3d 25, 45-46 (1st Cir. 2007). Nor

must it prove its case by direct evidence. See United States v.

Frankhauser, 80 F.3d 641, 653 (1st Cir. 1996); United States v.

David, 940 F.2d 722, 734 (1st Cir. 1991). A combination of direct

and circumstantial evidence, or circumstantial evidence alone, may

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suffice. See United States v. Santiago, 83 F.3d 20, 23 (1st Cir.

1996).

The defendants concentrate their attack on the evidence

of agreement and unlawful purpose. Specifically, they assert that

they did not operate Contract America; that they had no agreement

with Adams to achieve Contract America's unlawful ends; and that

the companies with which they were actively involved appropriately

remitted payroll taxes.

The record contains several pieces of evidence that blunt

the force of these assertions. Each principal played a role in

achieving the common purpose. The evidence showed that Floyd

structured the Contract America entity and served as its president,

treasurer, and director. She was also the signatory on Contract

America's bank account and gave Adams's then wife Marie Jones (an

unindicted coconspirator) a stamp bearing her (Floyd's) facsimile

signature to use on outgoing Contract America checks.

Adams ran the day-to-day operations of Contract America

(for a time, alongside Jones). A post office box application

listed him as a director of Talent Management.

Dion, who was denominated as a trustee of Contract

America in a corporate document, oversaw Talent Management. Jones

testified that Talent Management was "designed to work hand-in-

hand" with a firm called American Contracting Services (ACS), which

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Dion had helped to operate and which provided the same battery of

services as Contract America.

The record includes evidence that although Talent

Management remitted payroll taxes, its operation was nonetheless

unlawful. Talent Management named itself as the employer of record

on the relevant payroll tax forms in order to shield the actual

employers' identities from the IRS. Drawing inferences favorable

to the verdict, a rational jury could find that Talent Management

was a vital, if complementary, component of the payroll tax

scheme.2

It is, moreover, relevant that both defendants profited

from participation in the unlawful scheme. Jones testified that

the defendants received a percentage of the fees that Contract

America charged, paid to them through their consulting firm

Business Management Services (BMS). Receipt of a share of a

conspiracy's proceeds may be probative of the recipient's

participation in the conspiracy. See United States v. Aleskerova,

300 F.3d 286, 293 (2d Cir. 2002); see also United States v.

Pressler, 256 F.3d 144, 153 (3d Cir. 2001); United States v. Dadi,

235 F.3d 945, 950 (5th Cir. 2000).

2
In any event, it is apodictic that under certain
circumstances even "lawful activity may furnish the basis for a
conviction under § 371." Hurley, 957 F.2d at 4.

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 The defendants suggest that receipt of a share of the

revenues of a conspiracy is materially different than receipt of a

share of its profits. In the circumstances of this case, that is

a distinction without a difference. Many of the relevant

precedents speak of the "proceeds" of the conspiracy, without

distinguishing between "revenues" and "profits." See, e.g., United

States v. Brown, 727 F.3d 329, 339-40 (5th Cir. 2013); United

States v. Shepard, 462 F.3d 847, 867 (8th Cir. 2006); United States

v. Smith, 757 F.2d 1161, 1167 (11th Cir. 1985); United States v.

Gunter, 546 F.2d 861, 869 (10th Cir. 1976). It is for the jury to

determine, on the facts of the particular case, whether sharing in

the proceeds of a criminal enterprise evinces participation in the

goals of that enterprise.

The foregoing evidence, formidable in itself, is

buttressed by the testimony of two clients of the payroll scheme.

Gary Alcock (himself charged in the same indictment) was a small

business owner who had not remitted payroll taxes to the IRS for

many years. His brother Kenneth Alcock (similarly charged)

arranged a meeting for him with the defendants. The defendants

accepted Gary Alcock as a client. As part of their service plan,

they set up a sham corporation to shield his assets from, inter

alia, the IRS. They also set him up with payroll services.3 Some

3
Notwithstanding the defendants' self-serving protests that
they did not set up the Alcocks with Contract America, we think a
fair reading of Kenneth Alcock's testimony implicates both

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of Gary Alcock's employees were paid through Contract America,

others through Talent Management. In point of fact, Kenneth Alcock

testified that some employees were paid through both entities:

these workers would receive their regular pay through Talent

Management and overtime pay through Contract America.

The record includes additional evidence of the

defendants' unlawful intent. They kept in their home a Contract

America handout that described the company's proposed (unlawful)

scheme. The record also contains an e-mail that Floyd received

from Adams discussing a tax avoidance scheme for a particular

client. This e-mail is probative of both Contract America's

unlawful purpose and Floyd's involvement with the payroll tax

scheme. See United States v. Friedman, 300 F.3d 111, 126 (2d Cir.

2002) (holding that "evidence that the defendant participated in

conversations directly related to the substance of the conspiracy"

is indicative of intent (internal quotation mark omitted)).

We add that "evidence of a defendant's general mindset

may be relevant to the issue of his intent." United States v.

Mehanna, 735 F.3d 32, 46 (1st Cir. 2013). In this regard, the

record makes manifest evidence that both defendants stopped filing

federal tax returns in 1996 and, in 1997, joined an organization

called Save-a-Patriot, which was committed to resisting the IRS.

defendants and indicates that Talent Management and Contract
America worked hand-in-hand. At the very least, reasonable jurors
could interpret Kenneth Alcock's testimony in this way.

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 In sum, the record discloses proof that, when viewed in

the light most favorable to the verdict, was sufficient for a

rational jury to conclude that the defendants knowingly and

voluntarily entered an agreement with Adams to promote the payroll

tax scheme; that a purpose of the scheme was to facilitate unlawful

tax evasion by its clients; and that the defendants undertook a

series of overt acts in furtherance of the agreement.

Of course, the defendants strive to convince us that

there is an innocent explanation for each piece of evidence. But

accepting that argument would require us to wear blinders. That is

not our proper function: our focus must be on the evidence as a

whole. It suffices if the conclusions that the jury draws from the

evidence, although not inevitable, are reasonable. See United

States v. Laboy-Delgado, 84 F.3d 22, 26-27 (1st Cir. 1996)

(explaining that "it is legally irrelevant that a different jury,

drawing alternative inferences, might have reached a different

result").

2. Count 2: The Warehouse Banking Conspiracy. Count 2

likewise charges a section 371 conspiracy. The gravamen of the

government's case is that the defendants conspired to conceal their

clients' identities from the IRS by commingling funds in nominee

bank accounts. The defendants do not dispute that Office Services

and its successor, Calico, commingled funds. Instead, they seek

-12-
both to distance themselves from the interdicted activities and to

persuade us that the activities were lawful.

We start with Dion's claim that the activities were

lawful. There was abundant evidence that an object of Office

Services was to help particular clients evade the IRS. For

example, YVO (Office Services's predecessor-in-interest) advertised

repeatedly in the newsletter of Save-a-Patriot — an organization

dedicated to resisting the IRS. A typical YVO advertisement

offered the company's services in "complete privacy." Weighing

this evidence in context, we think that a rational jury could have

found this solicitation of tax-defiers probative of unlawful

intent. See United States v. Maldonado-García, 446 F.3d 227, 231

(1st Cir. 2006) (observing that evidence may be "buttressed by

inferences that reasonably can be drawn from the totality of the

circumstances"). This inference is especially compelling here

because the defendants used BMS to create sham trusts and

corporations to conceal client assets — and many of the affected

clients had been referred by the Save-a-Patriot group.

One of the individuals who saw the YVO advertisements was

Kenneth Alcock, and his testimony makes the cheese even more

binding. In addition to the problems with his brother's business,

Kenneth Alcock experienced personal tax problems. Dion offered to

help him, using the warehouse banking scheme.

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 It would serve no useful purpose to continue to cite book

and verse. Taking the evidence as a whole, a rational jury could

easily conclude that the object of Office Services's activities was

at least in part unlawful.

This leaves the "not me" arguments. They involve two

claims. First, both defendants insist that they "had nothing to do

with" Calico. Second, Floyd insists that she was not involved with

Office Services. These claims elevate self-serving optimism over

reasonable inference.

To begin, the defendants' denial of any relationship with

Calico is nothing but empty rhetoric. Even if the defendants were

not actively involved in the management of Calico, they were surely

involved in promoting its services. They coaxed Thorick into

starting the business as a continuation of Office Services, and it

offered essentially the same services. Indeed, Dion trained

Thorick to perform those services. He also helped to set up the

computer system that Calico used to execute its warehouse banking

operations. Last — but far from least — Thorick's original

customer list was compiled from a roster of Office Services

clients; and over time, the defendants augmented Calico's customer

base by continuing to refer clients to it.

Floyd's insistence that she was not involved with Office

Services is revisionist history. The record leaves no doubt but

that Floyd was hip-deep in the operations of that entity: Floyd was

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a trustee of Office Services; she was the person who, with Thorick,

opened a bank account for Office Services's Rhode Island branch;

she was a signatory of that account; she was the one whose

signature stamp was used on outgoing checks for the branch; and she

was imbued with authority over at least one other Office Services

nominee account. In addition, Gail Thorick testified that while

she "mostly" reported to Dion while operating the Rhode Island

branch of Office Services, she sometimes reported to Floyd.

Given the evidence rehearsed above, we are confident that

a rational jury, indulging inferences favorable to the verdict,

could reasonably have concluded — as this jury did — that the proof

was adequate to convict both Dion and Floyd of knowing

participation in the warehouse banking scheme.

3. Counts 4 and 5: Endeavoring to Obstruct the IRS.

Count 4 charged Dion with corruptly endeavoring to obstruct and

impede the due administration of the Internal Revenue Code in

violation of 26 U.S.C. § 7212(a). Count 5 lodged an identical

charge against Floyd. The thrust of the charges is that the

defendants "endeavored to obstruct and impede the IRS's ability to

determine [their] income and to assess taxes [that they] owed."

As the plain language of the statute suggests, the

government had to prove that the defendants "1) corruptly, 2)

endeavored, 3) to obstruct or impede the due administration of the

Internal Revenue laws." United States v. Marek, 548 F.3d 147, 150

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(1st Cir. 2008). While we have had scant occasion to explore the

contours of this statutory provision, there is a consensus among

the courts of appeals that "corruptly," as used in section 7212(a),

means acting with an intent to procure an unlawful benefit either

for the actor or for some other person. See, e.g., United States v.

McBride, 362 F.3d 360, 372 (6th Cir. 2004); United States v. Kelly,

147 F.3d 172, 177 (2d Cir. 1998); United States v. Winchell, 129

F.3d 1093, 1098 (10th Cir. 1997); United States v. Valenti, 121

F.3d 327, 331-32 (7th Cir. 1997); United States v. Wilson, 118 F.3d

228, 234 (4th Cir. 1997); United States v. Workinger, 90 F.3d 1409,

1414 (9th Cir. 1996); United States v. Dykstra, 991 F.2d 450, 453

(8th Cir. 1993); United States v. Popkin, 943 F.2d 1535, 1540 (11th

Cir. 1991); United States v. Reeves, 752 F.2d 995, 1001 (5th Cir.

1985). Even actions that would otherwise be lawful may transgress

the statute if they are undertaken with the intention of securing

an unlawful benefit. See Wilson, 118 F.3d at 234.

The defendants' insufficiency challenges to their

convictions on these counts focus on what the evidence does not

show. They point out, for example, that the record is barren of

any proof that they earned enough to pay taxes during the relevant

time frame, or that they filed false tax returns, or that they were

audited by the IRS. But any such omissions in the government's

proof are irrelevant to the validity of their convictions. A

conviction for violation of section 7212(a) does not require proof

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of either a tax deficiency, see, e.g., Marek, 548 F.3d at 150-55,

or an ongoing audit, see, e.g., United States v. Wood, 384 F. App'x

698, 704 (10th Cir. 2010) (collecting cases).4

While the filing of false tax documents may be "a

quintessential violation of the statute," Marek, 548 F.3d at 150,

it is not the only way in which the statute can be violated.

Certainly, concealment of income or other assets from the IRS can

form the basis for a violation of the statute. See, e.g., Popkin,

943 F.2d at 1540-41.

The defendant's better argument is that the government's

proof relies "solely on the structure of bank accounts and

corporations." But this argument understates the import of the

government's proof. The government introduced evidence showing

that, over the course of several years, large sums of third-party

money were filtered through the defendants' companies. Payments

were made from the warehouse accounts to both defendants, and cash

was withdrawn. The defendants derived income from that monetary

stream, and they commingled that income with clients' funds in what

the jury supportably could have concluded was a ploy to frustrate

IRS detection.

4
We are aware that the decision in United States v. Kassouf,
144 F.3d 952, 957-58 (6th Cir. 1998), is arguably to the contrary.
But Kassouf has been limited by the Sixth Circuit to its peculiar
facts, see United States v. Bowman, 173 F.3d 595, 600 (6th Cir.
1999), and we do not regard it as good law.

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 Based on the totality of this evidence, we think that the

jury was entitled to infer that the defendants had corruptly

endeavored to impede the IRS's computation of their tax liability

and that they had undertaken this course of action to benefit

themselves. The government's proof was, therefore, sufficient to

convict on counts 4 and 5.

B. Suppression.

We turn next to the defendants' importunings that some of

the evidence should have been suppressed. These importunings have

their genesis in the Fourth Amendment, see U.S. Const. amend. IV,

which demands that search warrants issue only upon a showing of

probable cause. To achieve this benchmark, there must be both

"probable cause to believe that a crime has been (or is being)

committed" and probable cause to believe "that evidence of [the

crime] can likely be found at the described locus at the time of

the search." United States v. Ricciardelli, 998 F.2d 8, 10 (1st

Cir. 1993) (emphasis omitted). If a search warrant issues in the

absence of either of these elements, the customary remedy is

suppression of any evidence seized in an ensuing search. See

United States v. Brunette, 256 F.3d 14, 19 (1st Cir. 2001).

Like most general rules, this rule admits of exceptions.

Even if a warrant issues upon an insufficient showing of probable

cause, suppression may be inappropriate if the officers involved

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have exhibited objective good faith. See United States v. Leon,

468 U.S. 897, 918-23 (1984); Brunette, 256 F.3d at 19.

In this instance, the defendants unsuccessfully sought to

suppress evidence seized in a search of their office (44 Depot St.,

Uxbridge, Mass.) and in two searches of their home (18 Wendy Lane,

Uxbridge, Mass.). "In reviewing a district court's denial of a

motion to suppress, we assess factual findings for clear error and

evaluate legal rulings de novo." United States v. Garcia-

Hernandez, 659 F.3d 108, 111 (1st Cir. 2011) (internal quotation

marks omitted), cert. denied, 132 S. Ct. 1873 (2012); accord United

States v. Fagan, 577 F.3d 10, 12 (1st Cir. 2009). This review is

highly deferential. "If any reasonable view of the evidence

supports the denial of a motion to suppress, we will affirm the

denial." United States v. Boskic, 545 F.3d 69, 77 (1st Cir. 2008).

1. The 2003 Office Search. On January 13, 2003, a

magistrate judge issued warrants authorizing the Postal Inspection

Service (USPIS) to search the building at 44 Depot St. and mailbox

#5 (located in front of the building). The warrants were issued in

connection with a USPIS investigation into the manufacture and sale

by Dion, doing business as PT Resource Center, of phony

identification cards. The bogus cards included replicas of

international driving permits (IDPs).

A 15-page affidavit of postal inspector Regina Faulkerson

formed the evidentiary predicate for the warrants. Her affidavit

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described the activities of PT Resource Center; catalogued

(allegedly false) representations made on the PT Resource Center

website; and outlined Dion's and PT Resource Center's ties to the

Depot St. location.

To establish a connection between Dion and the site,

Faulkerson relied in part on Dion's 1999 affidavit in an unrelated

matter. Pertinently, that affidavit vouchsafed that Dion conducted

business at the Depot St. location; that he was a proprietor of the

firms operating there (including PT Resource Center); and that he

used mailbox #5.

In this venue, the defendants make a two-pronged

argument. First, they argue that the district court erred in its

assessment of the commission element of the probable cause inquiry

(i.e., that a crime had been committed) because it incorrectly

concluded that producing "novelty IDs" is itself illegal. Second,

they argue that the court erred in relying on Dion's 1999 affidavit

to connect the crime to the location because that affidavit was

stale.

The first argument collapses of its own weight. It is

nose-on-the-face plain that the district court's holding did not

depend on a determination that the manufacture of certain types of

identification documents is per se illegal. The crimes that the

USPIS had under investigation were linked to false representations

that PT Resource Center made on its website. The district court,

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ruling ore tenus, made clear "whether you look at it as the

purchasers . . . wanted fake IDs for bad purposes, or they

themselves were victims defrauded into thinking that the

identifications were somehow legitimate . . . it's clear that there

was probable cause to believe that a crime had occurred or was

ongoing." The fact that the court made these findings while

discussing the searches of the defendants' home is inconsequential.

The defendants' second argument is no more robust. The

premise on which this argument rests is, of course, sound: "an

affidavit supporting a search warrant must contain timely

information or else it will fail." United States v. Schaefer, 87

F.3d 562, 568 (1st Cir. 1996). But the conclusion that they

attempt to draw from this premise is insupportable.

Determining whether information is stale is not a matter

of "merely counting the number of days elapsed." Id. Courts

sometimes have upheld probable cause determinations based on years-

old information. See, e.g., United States v. McElroy, 587 F.3d 73,

77-78 (1st Cir. 2009); United States v. Morales-Aldahondo, 524 F.3d

115, 119 (1st Cir. 2008); Schaefer, 87 F.3d at 568. Everything

depends on context.

The need to erect a contextual framework requires a

reviewing court to look to a wide variety of factors. Typically,

these factors include such things as "the nature and

characteristics of the supposed criminal activity . . . [and] the

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nature of the items delineated in the warrant." Schaefer, 87 F.3d

at 568. "The longer the expected duration of the criminal activity

and the longer the expected life of the items attendant to it, the

more likely that a datum from the seemingly distant past will be

relevant to a current investigation." Id.

With an eye to context, the district court's conclusion

was eminently reasonable. Dion's 1999 affidavit stated that he was

an owner of PT Resource Center, that PT Resource Center was based

at 44 Depot St., and that it used mailbox #5 in conducting its

business. The PT Resource Center website, which advertised the

IDPs on an ongoing basis, confirmed this connection.

There is more. Shortly before the warrants issued,

undercover investigators requisitioned IDPs from PT Resource Center

by sending an order form to 44 Depot St. Relatedly, the 44 Depot

St. postal carrier confirmed that he delivered mail in the name of

William Scott Dion to that address. These recent developments

indicated that the criminal activity (and Dion's connection to it)

was enduring and, thus, corroborated and refreshed the older

information contained in Dion's 1999 affidavit. As a result, the

information was timely. As this case aptly illustrates, otherwise

stale facts can be revivified and made relevant for search warrant

purposes by more recent confirmation. See McElroy, 587 F.3d at 77-

78 & n.5; Schaefer, 87 F.3d at 568.

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 Similarly, the nature of the items to be seized militates

against suppression. The warrant primarily sought business

records. Business records, as a class, are repositories of

historical facts and, therefore, are largely immune from claims of

staleness. See, e.g., United States v. Abboud, 438 F.3d 554, 574

(6th Cir. 2006); United States v. Hershenow, 680 F.2d 847, 853-54

(1st Cir. 1982).

That ends this aspect of the matter. The information

before the magistrate judge was more than enough to tie Dion to 44

Depot St. and to support a reasonable belief that evidence of a

crime might be found there.

2. The 2003 Home Search. While the 2003 office search

was underway, postal agents went to the defendants' home at 18

Wendy Lane. They entered the house with Dion's consent and

interviewed the defendants and Dion's father.5 Based on the

information gleaned in those interviews and plain-sight

observations made at the time, the agents formed a belief that

evidence of the crimes under investigation would be found in the

home.

Inspector Faulkerson relayed the necessary information to

a postal inspector, who prepared an affidavit that paved the way

5
A homeowner's voluntary consent to an entry into his home
obviates the need for a warrant. See Illinois v. Rodriguez, 497
U.S. 177, 181 (1990); United States v. Laine, 270 F.3d 71, 74-75
(1st Cir. 2001).

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for the issuance of an additional search warrant. A search of the

home ensued.

In challenging this search, the defendants do nothing

more than repackage and reassert their objections to the earlier

search of 44 Depot St. These objections, in their repackaged form,

are no more convincing. Consequently, we reject them out of hand.

3. The 2004 Home Search. On March 19, 2004, a

magistrate judge issued a warrant authorizing the search of 18

Wendy Lane. This warrant was founded upon the affidavit of an IRS

agent, David Toy. In his affidavit, Agent Toy carefully chronicled

the putative crimes and delineated their connection to 18 Wendy

Lane. He drew on a variety of sources, including his "personal

participation in [the] investigation [of the defendants],

information received by [him] from other federal law enforcement

officers, [his] interviews of witnesses, [his] review of documents

and records, a recorded telephone call, and [his] training and

experience as a criminal investigator."

The defendants posit that this affidavit does not satisfy

either element of the two-pronged probable cause standard. They

begin by branding the affidavit as consisting mainly of unsupported

conclusions. Apart from these conclusions, the defendants say, the

affidavit contains nothing more than innocuous descriptions of

legal activities.

-24-
 This argument is futile. We have, with a regularity

bordering on the echolalic, endorsed the concept that a law

enforcement officer's training and experience may yield insights

that support a probable cause determination. See, e.g., United

States v. Hicks, 575 F.3d 130, 137 (1st Cir. 2009); United States

v. Ribeiro, 397 F.3d 43, 50-51 (1st Cir. 2005); United States v.

Jordan, 999 F.2d 11, 14 (1st Cir. 1993); United States v. Aguirre,

839 F.2d 854, 858 (1st Cir. 1988). Here, moreover, the notion that

the affidavit contained no evidence of illegality beyond Agent

Toy's experience-based conclusions is flatly contradicted by the

affidavit's contents. To mine every nugget of factual information

from the 43-page affidavit would be pointless. A few examples

suffice to demonstrate the futility of the defendants' argument:

• The affidavit recounts a conversation in which a

man identifying himself as Charles Adams told an

undercover agent about the unlawful array of

services offered by Contract America.

• Documents seized during the 2003 home search and

referenced in Agent Toy's affidavit included a

Contract America business card.

• Subpoenaed bank records linked Contract America

to Floyd.

• Voluminous information attested to the

defendants' establishment of warehouse and

-25-
 offshore bank accounts and multiple mail drops,

all of which, when viewed in context, could

reasonably be seen as potential means to evade

IRS scrutiny.

Given these and other facts, it was reasonable for the

magistrate judge to draw the commonsense conclusion that evidence

of tax fraud would likely be found at 18 Wendy Lane. See United

States v. Falon, 959 F.2d 1143, 1147 (1st Cir. 1992) (observing

that courts "interpret affidavits for search warrants in a

commonsense and realistic fashion" (internal quotation marks

omitted)).

The defendants next assail the use of certain documents

to support the finding of probable cause. They argue that

documents seized in the 2003 search at 18 Wendy Lane should have

been suppressed and, thus, could not undergird a finding of

probable cause in connection with the 2004 home search. This

argument is hopeless: the 2003 home search was entirely within the

pale, see supra Part II(B)(2), a fact that renders the defendants'

redundant efforts to impugn the lawfulness of that search a waste

of time.

The defendants next try to discredit the probative value

of documents discovered in their trash. They argue that these

papers depict only legal transactions. But the defendants are

viewing this evidence through rose-colored glasses. Fairly read,

-26-
it tied the defendants' home tightly to both Contract America and

Talent Management. Consequently, the documents were probative of

a nexus between the location and the crimes alleged.

For these reasons, the 2004 home search was lawful.6

C. Severance.

We come now to the defendants' shared claim that they

should not have been tried together with Adams. This claim arises

at the intersection of Federal Rule of Criminal Procedure 8(b),

which permits the joinder of two or more defendants in a single

indictment, and Federal Rule of Criminal Procedure 14, which

empowers the district court to sever a defendant for purposes of

trial if joinder "appears to prejudice" him.

This intersection has been extensively mapped. The

general rule is that defendants who are properly joined in an

indictment should be tried together. See United States v.

O'Bryant, 998 F.2d 21, 25 (1st Cir. 1993). This rule has special

force in conspiracy cases, in which the severance of

coconspirators' trials "will rarely, if ever, be required." United

States v. Flores-Rivera, 56 F.3d 319, 325 (1st Cir. 1995) (internal

quotation marks omitted). Because considerable deference is due to

the trial court's superior coign of vantage, we review that court's

6
The district court concluded, as an alternative holding,
that the good-faith exception to the warrant requirement validated
all three searches. See Leon, 468 U.S. at 918-23. Because the
denial of the suppression motions on merits-based grounds is
unimpugnable, we do not address this alternative holding.

-27-
ruling granting or denying a motion to sever for abuse of

discretion. See United States v. Boylan, 898 F.2d 230, 246 (1st

Cir. 1990).

The defendants' claim of error has two subsets. They

start with the plaint that Adams's defense was both antagonistic to

and irreconcilable with their defenses. We do not agree.

The defendants and Adams were charged as participants in

the payroll tax conspiracy. Unlike the defendants, Adams — who was

also charged with three counts of tax evasion — decided to confess

and avoid; that is, he admitted that he intentionally committed and

facilitated the proscribed acts, but contended that his good-faith

belief that he had no legal obligation to pay income taxes

forestalled any finding of guilt. See Cheek v. United States, 498

U.S. 192, 203 (1991). The defendants took a different tack: they

eschewed an affirmative defense and instead questioned the adequacy

of the government's proof that they acted unlawfully.

Defenses are not antagonistic merely because they are not

congruent. "In order to gain a severance based on antagonistic

defenses, the antagonism . . . must be such that if the jury

believes one defendant, it is compelled to convict the other

defendant." United States v. Peña-Lora, 225 F.3d 17, 33 (1st Cir.

2000) (alteration in original) (emphasis in original) (internal

quotation marks omitted). Put another way, "the tension between

defenses must be so great that a jury would have to believe one

-28-
defendant at the expense of the other." United States v. Yefsky,

994 F.2d 885, 897 (1st Cir. 1993).

No troubling antagonism existed here: the jury could have

accepted both that Adams intentionally committed fraud and that the

defendants lacked the same culpable state of mind. See, e.g.,

United States v. Voigt, 89 F.3d 1050, 1095-96 (3d Cir. 1996);

United States v. Martinez, 979 F.2d 1424, 1431 (10th Cir. 1992);

cf. United States v. Throckmorton, 87 F.3d 1069, 1071-72 (9th Cir.

1996) (finding severance not required when codefendant "intended to

implicate [defendant], admit that the drug transaction occurred,

but contend he was involved solely as a DEA informant"). While the

defendants may have been uncomfortable with Adams's frank

admissions, the defenses were neither irreconcilable nor even

substantially incompatible. Accordingly, severance was not

required on this basis. See United States v. DeCologero, 530 F.3d

36, 52-53 (1st Cir. 2008).

The defendants' second ground for severance is equally

unavailing. They assert that a spillover effect from Adams's

presence as a defendant unfairly prejudiced them to such a degree

as to require separate trials. Specifically, they assert that the

evidence used to convict Adams (including Adams's own testimony)

was bound to provide proof of their criminal intent — proof that

would not have been admissible in a separate trial.

-29-
 These assertions contain more cry than wool.

Demonstrating unfair prejudice sufficient to require severance of

coconspirators' trials "is a difficult battle for a defendant to

win." Boylan, 898 F.2d at 246. The defendants have not come close

to winning the battle here.

The defendants try to marry their claim of unfair

prejudice to Adams's role in the Save-a-Patriot organization. But

the defendants' ties with the Save-a-Patriot organization form a

legitimate part of the government's case against them; and in any

event, the record contains ample evidence, independent of Adams's

testimony, to bind the defendants to the Save-a-Patriot

organization. The most obvious example of this independent

evidence is the defendants' membership in the organization.

To be sure, the defendants might well have been

advantaged by a separate trial. But that is not the test of

whether severance must be granted. See id. (explaining that, in

the severance context, "prejudice means more than just a better

chance of acquittal at a separate trial" (internal quotation marks

omitted)).

We need not tarry. Much of the evidence about which the

defendants complain would have been admissible against them even if

they had been tried separately from Adams. It follows that this

evidence does not furnish a plausible basis for severance. See

O'Bryant, 998 F.2d at 26 ("Where evidence featuring one defendant

-30-
is independently admissible against a codefendant, the latter

cannot convincingly complain of an improper spillover effect.").

For aught that appears, the remainder of the evidence, if

prejudicial at all, caused nothing beyond the "garden-variety"

prejudice that we consistently have found insufficient to require

severance. Boylan, 898 F.2d at 246.

We add a coda. To the extent that there was any

spillover from evidence that might not have been admissible against

the defendants in a separate trial, the district court took

effective measures to palliate spillover prejudice. Where, as

here, "[t]here were appropriate limiting instructions as to the

admissibility of evidence against particular defendants and as to

the need to determine guilt on an individual basis," id., no more

is exigible.

We conclude, without serious question, that the district

court acted well within the encincture of its discretion when it

denied the defendants' motions for severance.

D. Federal Register Act.

The defendants claim that the district court should have

dismissed counts 4 and 5 because the IRS did not comply with the

Federal Register Act, 44 U.S.C. § 1505(a)(1), in connection with

the statute on which those counts were based (26 U.S.C. § 7212(a)).

We first explain the defendants' thesis and then dispose of their

claim.

-31-
 In the Federal Register Act, Congress decreed that

certain executive actions must be recorded in the Federal Register.

See 44 U.S.C. § 1505(a)(1). After the enactment of 26 U.S.C.

§ 7212(a), the IRS did not publish implementing regulations in the

Federal Register. Building on this foundation, the defendants

suggest that enforcing section 7212(a) against them transgresses

their constitutional rights to notice and due process. This

suggestion presents a pure question of law, which we review de

novo. See United States v. Moore, 286 F.3d 47, 49 (1st Cir. 2002).

By its plain terms, the statutory provision upon which

the defendants rely, 44 U.S.C. § 1505(a)(1), applies to

presidential proclamations and executive orders. The law is

settled beyond hope of contradiction that the provision has no

application to criminal statutes enacted by Congress. See United

States v. Walls, 546 F.3d 728, 740 (6th Cir. 2008); United States

v. Schiefen, 139 F.3d 638, 639 (8th Cir. 1998) (per curiam).

Congress's enactment of a criminal statute and the statute's

subsequent publication in the United States Code, without more,

puts prospective defendants on fair notice.7 See Cheek, 498 U.S.

at 199; Roberts v. Maine, 48 F.3d 1287, 1300 (1st Cir. 1995) (Cyr,

J., concurring).

7
The statutory provision at issue here has been published
continuously in the United States Code since at least 1958.

-32-
 The defendants nonetheless argue that as a precondition

to enforcement of the statute of conviction, the Federal Register

Act requires the publication of implementing regulations. This

argument is woven out of whole cloth.

The defendants wrap their argument in the mantle of the

Supreme Court's decision in California Bankers Ass'n v. Shultz, 416

U.S. 21 (1974). There, the Court concluded that the Bank Secrecy

Act of 1970 was not "self-executing," id. at 64, so if the agency

did not promulgate regulations, "the Act itself would impose no

penalties on anyone," id. at 26.

This precedent is inapposite. The Federal Register Act

has been described as a "notice" statute. United States v. Floyd,

477 F.2d 217, 222 (10th Cir. 1973). It requires the publication of

regulations, not their promulgation. See Kennecott Utah Copper

Corp. v. U.S. Dep't of Interior, 88 F.3d 1191, 1205 (D.C. Cir.

1996) (explaining the purpose of the Act as "protect[ing] regulated

entities from . . . the government's failure to publish duly-

approved regulations"). The statute of conviction here is self-

executing and no regulations are needed to effectuate it. See,

e.g., Marek, 548 F.3d at 150, 155. This is why courts that have

faced similar Shultz-based attacks on other provisions of the

Internal Revenue Code have repulsed those attacks. See United

States v. Dawes, 161 F. App'x 742, 745 (10th Cir. 2005); Watts v.

IRS, 925 F. Supp. 271, 277 (D.N.J. 1996).

-33-
 We hold that the defendants' claim of a Federal Register

Act violation is without merit.

E. Sentencing.

The district court meted out prison sentences of 84

months to Dion, 60 months to Floyd, and 48 months to Adams. It

sentenced other coconspirators, who did not go to trial, more

leniently. Dion claims that his sentence reflects an unwarranted

disparity.

We review a district court's bottom-line sentencing

determination for abuse of discretion. See United States v.

Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). Within this

rubric, we assay the district court's findings of fact for clear

error and its application of the sentencing guidelines de novo.

See id. "The touchstone of abuse of discretion review in federal

sentencing is reasonableness." United States v. Vargas-Dávila, 649

F.3d 129, 130 (1st Cir. 2011).

An assessment of reasonableness "typically involves a

two-step pavane." Flores-Machicote, 706 F.3d at 20. The first

step entails an inquiry into the incidence of procedural errors.

See id. "Once we are assured that the sentence is not infected by

procedural error, we then proceed to evaluate its substantive

reasonableness." Id.

Dion frames his claim as a complaint about the

substantive reasonableness of his sentence. The central premise of

-34-
his complaint is that he was similarly situated to his

coconspirators, yet sentenced more harshly. With this premise in

place, he invokes a provision of the Sentencing Reform Act that

directs a sentencing court to consider "the need to avoid

unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct." 18 U.S.C.

§ 3553(a)(6).

Dion's premise is faulty in two salient respects. First,

Dion focuses on the wrong universe. In enacting section

3553(a)(6), "Congress's concern was mainly with minimization of

disparities among defendants nationally rather than with

disparities among codefendants engaged in a common conspiracy."

United States v. Vargas, 560 F.3d 45, 52 (1st Cir. 2009).

Second — and perhaps more important — Dion's premise is

undercut by the record. The district court supportably found that

Dion was more culpable than his coconspirators. In this vein, it

found that Dion was the mastermind of the conspiracies. See USSG

§3B1.1(a) (directing four-level enhancement for organizer or

leader). Floyd and Adams performed lesser roles, see id. §3B1.1(b)

(directing lower enhancement for manager or supervisor), and

nothing in the record indicates that any of the remaining

coconspirators received upward role-in-the-offense adjustments. It

is too obvious to warrant citation of authority that an offender

-35-
who sits at the top of a criminal hierarchy is not similarly

situated to his underlings.

There are other differences as well. For example, the

district court found that Dion was responsible for a substantially

larger tax loss than Adams because Adams did not participate in the

warehouse banking scheme. See id. §2T4.1(H), (J). So, too, the

remaining coconspirators cooperated with the government and/or

accepted responsibility. Such distinctions can justify

differential treatment at sentencing. See United States v. Dávila-

González, 595 F.3d 42, 50 (1st Cir. 2010).

Stripped of flawed comparisons, Dion's claim that his

sentence is substantively unreasonable is a pipe dream. The

district court calculated Dion's guidelines sentencing range as 121

to 151 months. The court then ameliorated this range through a

downward variance to 84 months.

When, as in this case, a district court essays a

substantial downward variance from a properly calculated guideline

sentencing range, a defendant's claim of substantive

unreasonableness will generally fail. See, e.g., United States v.

Williams, 630 F.3d 44, 52 (1st Cir. 2010); United States v. Glover,

558 F.3d 71, 82-83 (1st Cir. 2009). Dion's claim falls within this

generality, not within the long-odds exception to it. We discern

no hint of an abuse of discretion in the district court's

disposition.

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III. CONCLUSION

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

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