NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0588n.06
FILED
No. 11-3201
Jun 06, 2012
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
THIERNO M. DIALLO, ) OHIO
)
Defendant-Appellant. )
Before: BOGGS, NORRIS, and KETHLEDGE, Circuit Judges.
PER CURIAM. Thierno M. Diallo, a federal prisoner, appeals his conviction on seven
counts of aiding and assisting in the preparation of false tax returns.
Diallo was charged with fifteen counts, pled not guilty, and proceeded to a jury trial. At trial,
the government introduced evidence that Diallo had a tax-preparation business in addition to his
regular job, and that he prepared approximately 750 tax returns for the years 2006 and 2007, mostly
for other members of the West African immigrant community. The government presented evidence
that an unusual percentage of the returns prepared by Diallo resulted in refunds to the taxpayers. The
taxpayers involved in the fifteen charged returns testified that Diallo prepared their returns, which
were false in that they claimed an erroneous filing status, number of dependents, or business
expenses. Diallo presented the defense that he had prepared the returns with the information
provided by the individuals, and that they had blamed him for the false returns in order to avoid
deportation. The jury convicted Diallo on seven counts and acquitted him on eight counts. He was
sentenced to twenty-four months of imprisonment.
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On appeal, Diallo argues that the district court erred in granting the government’s motion in
limine, which prevented him from arguing that the over 700 returns that he was not charged with
falsifying were in fact accurate.
We note initially that counsel did make this argument in his opening statement, as the motion
in limine was not filed until after the opening statements. Therefore, he was not entirely precluded
from raising this argument before the jury. Diallo argued, in response to the motion, that the
government’s statistical evidence regarding the number of refunds received by his clients implied
that most of the returns he prepared were false, and was therefore unduly prejudicial. He asked to
be permitted to argue that, because he was charged with only fifteen counts, the remainder of the
returns he prepared must have been accurate. The district court found that the statistical evidence
was presented for the purpose of showing how Diallo’s tax preparation business came to the
attention of the IRS. It ruled that evidence that the other returns were accurate would not be relevant
to Diallo’s guilt on the charged counts.
A district court’s ruling regarding the admission of evidence or argument is reviewed for an
abuse of discretion, and even if an abuse of discretion is found, it will justify reversal only if the error
was not harmless. United States v. Jackson-Randolph, 282 F.3d 369, 376 (6th Cir. 2002). An error
concerning admission of evidence is harmless unless it is more probable than not that the error
materially affected the verdict. United States v. Davis, 577 F.3d 660, 670 (6th Cir. 2009).
Here, the district court relied on United States v. Daulton, No. 06-4593, 2008 WL 116356
(6th Cir. Jan. 8, 2008), a similar case where we concluded that evidence that the defendant filed
some accurate tax returns was irrelevant to whether he was guilty of falsifying the returns that he was
charged with falsifying. We find no abuse of discretion in the district court’s ruling. Diallo argues
that his case is distinguishable from Daulton because the government implied that he had a scheme
involving filing mostly false returns. He argues that the district court erred in finding that the
statistical evidence was presented to explain how his returns came to the attention of the IRS, when
the evidence was actually used to imply that he was guilty of a scheme to file mostly false returns.
But even if the district court committed error, the error was harmless. The jury was able to separate
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the evidence on each count. This is clear from the fact that it acquitted Diallo on eight of the fifteen
counts charged. Therefore, the jury was not swayed by any attempt to imply that Diallo filed mostly
false returns.
Accordingly, we affirm Diallo’s conviction.