Case: 15-10026 Document: 00513231427 Page: 1 Date Filed: 10/14/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 15-10026 October 14, 2015
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICKEY JOE PEREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:12-CR-377-2
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Mickey Joe Perez challenges the sufficiency of the evidence supporting
his convictions for seven counts of aiding and assisting in the preparation and
presentation of false and fraudulent individual income tax returns. According
to Perez, none of the employees of Action E-File Services testified that he
trained or encouraged anyone to commit tax fraud or that they observed him
commit the crimes alleged in the counts of conviction; the testimony of
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-10026 Document: 00513231427 Page: 2 Date Filed: 10/14/2015
No. 15-10026
taxpayers for whom he prepared returns was insufficient to show that he
willingly violated federal tax laws; and the taxpayers’ testimony was not
credible because they received “consideration” as the Government stated it did
not intend to prosecute them. Perez further asserts that the jury’s decision
was not rational because the evidence on the counts of conviction was
materially indistinguishable from the counts on which he was acquitted. In a
similar vein, he asserts that the evidence against his codefendant, Carolyn
Clark, was more incriminating than any evidence presented against him, but
the jury acquitted Clark on all but one count. Finally, Perez maintains that
reversal of his convictions is required because of the “equipoise rule,” that the
evidence tends to give equal or nearly equal circumstantial support to a theory
of guilt or a theory of innocence.
This court reviews de novo a properly preserved challenge to the
sufficiency of the evidence. United States v. McElwee, 646 F.3d 328, 340 (5th
Cir. 2011). Evidence is sufficient to support a conviction “if a reasonable trier
of fact could conclude . . . the elements of the offense were established beyond
a reasonable doubt, viewing the evidence in the light most favorable to the
verdict and drawing all reasonable inferences from the evidence to support the
verdict.” United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007) (internal
quotation marks and citation omitted). To establish that Perez aided and
assisted in the preparation of false and fraudulent tax forms, the Government
had to prove, beyond a reasonable doubt, that Perez “willfully aided, assisted,
counseled, or advised another in the preparation or presentation under the
internal revenue laws of a document that is fraudulent or false as to any
material matter.” United States v. Mudekunye, 646 F.3d 281, 285 (5th Cir.
2011) (internal quotation marks and citation omitted).
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No. 15-10026
The evidence was more than sufficient to support Perez’s convictions.
Perez presented himself as a professional tax preparer, and his name appeared
as the preparer on the tax returns at issue. Perez listed numerous deductions
or credits even though the taxpayers testified that they did not incur the
expenses, did not discuss the expenses with Perez, and did not provide the
figures or documentation to support the expenses to Perez. These included
education credits and deductions for charitable donations and unreimbursed
employee expenses. The false information was material as the taxpayers
received tax refunds. Perez also cautioned one Action employee, Veronica
Torres, that the numbers she used on tax returns would be suspicious if the
claimed amounts were not proportionate to the taxpayer’s income. A rational
jury could infer from this evidence that Perez acted willfully to aid or assist in
the preparation and presentation of false or fraudulent tax returns. Although
Perez asserts he acted in good faith, he has not identified any specific evidence
in support of this assertion.
Perez’s argument that the taxpayer witnesses were not credible because
they had agreements with the Government fails as Perez has not shown that
the testimony was incredible on its face. See United States v. Shoemaker, 746
F.3d 614, 623 (5th Cir. 2014). The jury had the sole responsibility for
determining the credibility of the witnesses. See id.
Contrary to Perez’s argument, we do not consider the jury’s rejection of
certain counts in determining whether the evidence is sufficient to support
Perez’s convictions. See United States v. Parks, 68 F.3d 860, 865 (5th Cir.
1995). Further, we have abrogated the “equipoise rule” cited by Perez. See
United States v. Vargas-Ocampo, 747 F.3d 299, 301-02 (5th Cir. 2014)
(en banc).
AFFIRMED.
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