United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3346
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Karen Petersen, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 29, 2008
Filed: January 8, 2009
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Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal following a jury trial in which Karen Petersen and
her husband, Charles Petersen, were each found guilty of conspiracy to evade taxes
and conspiracy to willfully fail to file a tax return, Karen Petersen (Petersen)
challenges (1) the sufficiency of the evidence to support her conviction and (2) the
district court’s1 application of the Guidelines at sentencing.
1
The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
We first conclude that the evidence was sufficient to support the jury’s guilty
verdict. See United States v. Hamilton, 332 F.3d 1144, 1148-49 (8th Cir. 2003) (in
reviewing sufficiency of evidence to support guilty verdict, this court views evidence
in light most favorable to government, resolving all conflicts and accepting all
reasonable inferences in favor of verdict; verdict will be upheld if any reasonable
interpretation of evidence could lead reasonable jury to find guilt beyond reasonable
doubt). Based on the evidence at trial, the jury reasonably could have found that
Petersen did not have a good faith belief in the lawfulness of her actions and that she
knowingly, willfully, and in agreement with her husband engaged in affirmative acts
for the purpose of evading taxes and avoiding filing obligations, which resulted in a
tax deficiency. In addition, because she was charged with conspiracy offenses, the
jury was not required to find that she personally had an obligation to file a tax return.
See United States v. Schoppert, 362 F.3d 451, 454 (8th Cir. 2004) (elements of tax
evasion are (1) willfulness, (2) existence of tax deficiency, and (3) affirmative act
constituting evasion or attempted evasion of tax); United States v. Nichols, 151 F.3d
850, 851 (8th Cir. 1998) (elements of conspiracy are (1) agreement to achieve illegal
purpose, (2) defendant’s knowledge of agreement, and (3) defendant’s knowing
participation in conspiracy); United States v. Gleason, 726 F.2d 385, 388 (8th Cir.
1984) (per curiam) (elements of willful failure to file tax return are (1) failure to file
return and (2) willfulness).
We further conclude, for the following reasons, that the district court properly
applied the Guidelines in sentencing Petersen.
The district court did not clearly err in its determination of the relevant amount
of tax loss, particularly in light of the evidence at trial regarding an audit conducted
by the Internal Revenue Service of the Petersens and their trust. See U.S.S.G.
§ 2T1.1, comment. (n.1) (“tax loss” includes interest and penalties in cases involving
willful evasion or willful failure to pay; in some cases, amount of tax loss may be
uncertain; Guidelines contemplate that court will simply make reasonable estimate
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based on available facts); United States v. Radtke, 415 F.3d 826, 841 (8th Cir. 2005)
(sentencing court’s determination of amount of loss is reviewed for clear error).
Moreover, Petersen did not show that the tax deductions she proposed were
appropriate. Cf. United States v. Gordon, 291 F.3d 181, 187-88 (2d Cir. 2002)
(defendant bears full burden of proof in establishing appropriateness of unclaimed
deduction).
The district court did not clearly err in finding that Petersen and her husband
used their trust to convert checks to cash and to money orders for the purpose of
concealing income and assets; accordingly, the court did not err in applying a
sentencing enhancement for tax offenses involving sophisticated means. See U.S.S.G.
§ 2T1.1, comment. (n.4) (conduct such as hiding assets or transactions, or both,
through use of fictitious entity ordinarily indicates sophisticated means); United States
v. Rouillard, 474 F.3d 551, 555 (8th Cir. 2007) (findings of fact reviewed for clear
error; interpretation and application of Guidelines reviewed de novo); United States
v. Brooks, 174 F.3d 950, 958 (8th Cir. 1999) (affirming application of sophisticated-
means enhancement where defendant had taken steps to conceal his ownership of
property and evade his tax obligations, even though court recognized that defendant
“could have taken even more intricate steps to avoid payment of his federal income
taxes”).
The district court did not plainly err in increasing Petersen’s offense level for
obstructing justice, because it was undisputed that she had failed to appear as ordered
for a scheduled sentencing hearing. See U.S.S.G. § 3C1.1, comment. (n.4(e)) (among
examples of conduct warranting obstruction adjustment is willful failure to appear, as
ordered, for judicial proceeding); United States v. Cramer, 414 F.3d 983, 989 (8th Cir.
2005) (defendant’s failure to object to specific alleged fact in PSR allows district court
to accept fact as true for purposes of sentencing); United States v. Dixon, 360 F.3d
845, 847 (8th Cir. 2004) (defendant’s failure to object to application of Guidelines
provision in district court results in plain-error review on appeal).
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The district court did not clearly err in finding that a reduction for acceptance
of responsibility was not warranted. Although Petersen’s decision to proceed to trial
did not automatically preclude her from consideration for this reduction, see U.S.S.G.
§ 3E1.1, comment. (n.2), that decision plus other relevant factors noted by the district
court at sentencing were more than sufficient to support the denial of this reduction.
See United States v. Jones, 539 F.3d 895, 897 (8th Cir. 2008) (determination as to
acceptance of responsibility is factual finding that appellate court reviews only for
clear error); United States v. Winters, 416 F.3d 856, 860 (8th Cir. 2005) (factual
determination on whether defendant has demonstrated acceptance of responsibility is
entitled to great deference and should be reversed only if it is so clearly erroneous as
to be without foundation).
Finally, the district court did not clearly err in finding that a reduction for a
mitigating role in the offense was not warranted. See U.S.S.G. § 3B1.2, comment. (n.
3(A)) (section applies to defendant who “plays a part in committing the offense that
makes him [or her] substantially less culpable than the average participant”); United
States v. Lopez-Arce, 267 F.3d 775, 784 (8th Cir. 2001) (district court’s determination
whether defendant was minor or minimal participant may be reversed only for clear
error).
The judgment is affirmed.
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