Case: 14-20485 Document: 00513278453 Page: 1 Date Filed: 11/19/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-20485
Fifth Circuit
FILED
November 19, 2015
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
JOHN E. CARTER,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CR-490
Before DENNIS and COSTA, Circuit Judges, and ENGELHARDT,* District
Judge.
PER CURIAM:**
This is a direct appeal from a judgment entered in a criminal case after
a jury convicted John Carter on five counts of willfully aiding and assisting in
the preparation of fraudulent tax returns in violation of 26 U.S.C. § 7206(2).
Carter ran a tax preparation business and helped various clients receive
* District Judge of the Eastern District of Louisiana, sitting by designation.
**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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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sizeable tax refunds by claiming tax deductions for the charitable donation of
African art even though the clients neither possessed nor donated the art
during the year for which the deduction was claimed. The indictment alleged
that Carter directed a co-conspirator, Sulayman Jarra, who was a Houston-
based art appraiser, to “backdate” the necessary tax forms to reflect that the
art donations had been made in the year of the relevant returns despite
knowing that the donations had not occurred in that year. The indictment
further alleged that the returns prepared by Carter claimed a charitable
contribution for the appraised, fair market value of the African art despite
Carter’s knowledge that none of his clients had held the art for the requisite
one-year holding period, as required by federal tax law, to claim the fair market
value as a charitable contribution. Following a two-day trial, the jury
acquitted Carter of conspiracy to aid in the preparation of false tax returns but
convicted him on the five substantive counts of willfully aiding and assisting
in the preparation of false tax returns.
The sole issue on appeal is whether the district court committed
reversible error by refusing to instruct the jury, in accordance with Cheek v.
United States, 498 U.S. 192 (1990), that Carter’s good faith belief as to the
legality of his acts did not have to be objectively reasonable in order to be
considered by the jury. The Government concedes that the district court erred
in refusing to provide a Cheek instruction with respect to one of its prosecution
theories but contends that the error was harmless. Based on our careful
review of the record, we agree with the Government and conclude that, in light
of the entire record, the refusal to provide Carter’s requested instruction could
not have affected the outcome of the case. We therefore affirm his conviction.
I.
A grand jury returned an indictment that charged John E. Carter, who
made his living preparing income tax returns, with one count of conspiring to
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aid in the preparation of false tax returns and five counts of aiding in the
preparation of false tax returns. The indictment alleged the following: Carter
was the sole shareholder of Midwestern Financial Group, Inc. (“MFG”), a tax-
preparation business. Carter was the only person at MFG who prepared
income tax returns for taxpayers. Carter advised his clients that they could
minimize tax liability by claiming tax deductions for the previous calendar year
for donations of art to charitable institutions even though the clients neither
possessed nor donated the art during the year for which the deduction was
claimed. These claimed donations resulted in refunds for the year in which the
donation was first claimed as well as subsequent years. The refunds that
occurred in years subsequent to the donation were the result of a
“carryforward,” i.e., the portion of a charitable contribution that a taxpayer can
“carry forward” to a future year or years if the taxpayer was unable because of
the amount of his or her adjusted gross income to take a deduction for the full
amount of the charitable contribution in the first year that he or she claimed
it.
The indictment further alleged that Carter directed a co-conspirator to
appraise the donated art and produce both an art appraisal that was backdated
to the year for which the client would claim the deduction and a backdated IRS
form 8283, which is the requisite tax form for non-cash charitable donations,
and that a representative of the donee charity also signed the form 8283,
falsely acknowledging that the art had been received by the donee in the prior
year. According to the indictment, the income tax returns that Carter
ultimately prepared for his clients reflected that the art was worth more than
the clients had paid or were going to pay Carter for the art. Moreover, the
indictment alleged that the tax returns “claimed a charitable contribution for
the appraised, alleged fair market value of the art” despite Carter’s knowledge
“that none of the taxpayer clients had held the art for the holding period
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required before being able to claim the alleged fair market value of the art as
a charitable contribution.” Carter allegedly attached the false appraisals and
forms to his clients’ tax returns and submitted all of these items to the IRS in
both the initial year that the deduction was claimed and the years in which the
carryforward deductions were claimed. Specifically, the indictment alleged
that Carter submitted four false 2007 returns for four different clients, and one
false 2008 return for one of these four clients. The clients were Robert Estill,
Chandra Pierson, Duane Hightower, and Walter Patterson. According to the
indictment, Carter explained to his clients that they could either give him a
set fee for procuring the art for them or they could give him a percentage of
their income tax refunds for all of the years in which the donation reduced their
tax liability.
At trial, the jury heard testimony from IRS employees, Carter’s clients,
the art appraiser, Carter’s daughter and Carter himself.
First, IRS employee Roman Hernandez testified regarding the specific
details of the five tax returns filed by Carter at issue in this case, as well as
the necessary components of completing such tax returns that claim a
deduction for non-cash charitable contributions, such as art. A form 8283 is
required for any non-cash charitable contribution in excess of $500. Both the
appraiser and the donee are required to sign the form 8283. A signed appraisal
form is also required for any donation of art in excess of $20,000. Hernandez
further testified that Carter was the preparer for all five of the tax returns at
issue in this case but that Carter had failed to sign the returns under penalty
of perjury. All five of the returns reported large art donations, and tax refunds
were issued for all five returns. Each of the returns contained a form 8283, all
of which were dated December 11, 2007. This date purports to reflect both the
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date that the art appraisal occurred and the date that the art actually was
donated.
Next to testify were Carter’s various clients whose returns were the
subject of Carter’s prosecution. Robert Estill testified that he was first
introduced to Carter in 2006 or 2007 and that he first met with Carter about
preparing his 2007 tax return at some point in early 2008. Estill explained
that his 2007 income was “pretty high” and that he needed “additional
charitable contributions” for that tax year. According to Estill, Carter advised
him at some point in 2008 that he “could buy [] art for a certain amount and
then the art would actually be appraised and there w[ould] be some kind of
leverage value that [Estill] could get as a deduction” on his taxes. Carter
assured Estill this was legitimate and that he had done it numerous times
before. On March 3, 2008, Estill gave Carter a check in the amount of $54,000
for the purchase of the art donated and claimed as a deduction on his 2007 tax
return. Later, on September 3, 2008, Estill gave Carter another check in the
amount of $35,000 for the tax services performed by Carter. Although Estill’s
tax returns represented that he owned and donated the art in 2007, he did not
own the pieces of art in 2007. Rather, he first purchased the art in 2008 by
giving Carter the check in the amount of $54,000 in March 2008. He also
testified that he had never held in his hand the pieces of art claimed to be
donated in 2007. According to Estill, Carter never explained to him how he
could claim a deduction for a charitable contribution in 2007 for art that he did
not own until 2008. Estill testified he did not understand what he was doing
to be criminal. Ultimately, Estill was audited by the IRS and he was forced to
pay back over $700,000.
Carter’s client Chandra Pierson testified next. Pierson is a commercial
banker and first met Carter in the 1990s through Carter’s daughter, with
whom Pierson had attended college. The first tax return that Carter prepared
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for Pierson was her 2007 return. She testified that she had gone to Carter to
discuss the return either at the end of 2007 or early 2008. According to Pierson,
she did not have any conversations with Carter or his daughter about making
donations of art in connection with her 2007 tax return. Yet, her tax return
showed a donation of African art in 2007 worth $275,000 to a library in South
Carolina. She further testified that she had never donated any art to a library
in South Carolina despite the fact that her 2007 tax return claimed a charitable
donation of art there. Shown a list of pieces of art claimed as charitable
donations on her 2007 tax return, Pierson stated that she did not own any
pieces of art in 2007, and she never understood that she had purchased any
art. She further testified that she did not know the name of the appraiser,
Sulayman Jarra, whose name appeared on the corresponding appraisal tax
forms that Carter filed along with her return. Carter also prepared Pierson’s
tax returns for 2008 through 2011. These tax returns included a “carryover”
deduction for the 2007 art donation. Pierson testified that she paid Carter for
his tax services for these years, but she never made any payments to him for
the purchase of any art. Pierson received a tax refund for all of the years that
a donation was claimed on her tax forms.
Carter’s client Duane Hightower next testified. According to Hightower,
he first met Carter sometime around March 2008, at which point they
discussed Carter preparing Hightower’s 2007 tax return. During their
discussions about preparing Hightower’s taxes, Carter inquired whether
Hightower would be willing to invest money to purchase art that Carter would
donate on his behalf. Carter proposed two alternative payment options:
Hightower could either (1) give Carter $21,000 upfront to pay for the art which
Carter would donate over a five-year period, or (2) agree to give Carter 40
percent of any tax refund he received while Hightower would retain the
remaining 60 percent. At the time, Hightower did not ask whether Carter’s
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proposal was legitimate. Hightower ultimately consented to the 60/40 option.
Accordingly, Hightower’s tax return for 2007 claimed a deduction for the
charitable donation of African art in 2007, and he ultimately received a tax
refund of $13,003. Hightower testified that he never owned any of these pieces
of art in 2007. He further testified that he did not know and had never met
with the art appraiser, Sulayman Jarra. In 2008, Hightower paid Carter 40%
of his $13,003 tax refund amount and thereafter paid Carter 40% of his tax
refunds for the years 2008 and 2009. He never made any payments to Carter
in 2007.
The last of Carter’s former clients to testify was Walter Patterson. Prior
to 2007, Patterson prepared his own taxes. Patterson testified that he met
Carter through Patterson’s brother-in-law, who had hired Carter to do his own
taxes. Patterson first hired Carter to do his taxes for 2007. He believes he
initially met with Carter about preparing his 2007 return sometime in 2008,
possibly in the spring. During this meeting, Carter told Patterson that he
could possibly save him money by investing in and donating art. According to
Patterson, Carter told him that he would have to pay approximately $5,000
upfront in order to donate the art, which would reduce Patterson’s taxes.
Patterson asked Carter if this strategy was legitimate, and Carter assured him
that it was and that he was making these donations on behalf of “a number of
different people.” Patterson agreed to this proposal, and his 2007 tax return
prepared by Carter claimed a donation of art during 2007 valued at $225,300.
Patterson testified that he first bought this art in 2008 when he wrote Carter
a check for $5,000.
The Government next called Sulayman Jarra, the individual who
appraised the art claimed to be donated in 2007 by Carter’s clients. Jarra
testified that he had pleaded guilty to aiding in the preparation of false tax
returns and was awaiting sentencing. Jarra and his brother were the owners
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of an African art gallery in Houston. Jarra testified that he purchased African
art through African dealers who travel through Houston. In his appraisal
biography, Jarra claimed to hold a Ph.D. from Columbia University, but he
testified at trial that this was not true. Jarra testified that he learned the
appraisal business from Lowell Collins, who had previously done appraisal
work for Carter. After Collins’s death, Jarra began to conduct appraisals for
Carter. Carter would bring Jarra pieces of art to appraise for Carter’s clients.
Carter would pay Jarra between $50 and $100 per piece. Jarra would appraise
the art at its fair market value which involved researching auction catalog
values. Jarra testified that he would complete the appraisal forms and forms
8283 and then return them to Carter for filing with his clients’ returns. Jarra
would also obtain the requisite signatures from the donees.
With respect to the tax returns at issue in this case, Jarra testified that
he completed the necessary appraisal forms and forms 8283. According to
Jarra, Carter explicitly requested that he backdate the forms to reflect that the
art donations had actually occurred in 2007. Jarra complied by backdating all
the forms to December 11, 2007. Jarra testified that the forms were actually
completed in 2008. According to Jarra, Carter knew that the forms were
backdated.
The Government’s final witness was Michael Greer, the IRS special
agent that helped conduct the criminal investigation into the art donations
claimed by Carter’s clients. Greer questioned Carter on at least two occasions
in connection with the investigation. According to Greer, Carter told him that
he was the sole individual who prepared tax returns for MFG. Carter further
told Greer that Jarra was responsible for preparing the forms 8283 and
ensuring that the art was delivered to the donee. Carter told Greer that all of
his clients would come to him asking about making art donations and that he
never initiated these conversations himself. During Greer’s second interview
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with Carter, Carter told him that he had “lost his sanity” following their initial
meeting and “started shredding copies of the forms 8283 that he still had in
his possession.”
Greer also provided testimony regarding the requirements for claiming
a charitable contribution under federal tax law. Greer explained that the form
8283 and an IRS publication called Publication 526 provide instructions for
claiming a charitable contribution consistent with federal tax law. Both
documents are available online. Greer explained that both Publication 526 and
the instructions for the form 8283 provide that a donor of art must have held
the art for at least one year in order to deduct the fair market value of the art.
Greer testified that the instructions to form 8283 “make clear” this
requirement.
Carter’s daughter, Krista Carter, testified that she had spoken with
Chandra Pierson in 2006 or 2007 about Pierson’s taxes. Krista told Pierson
she had claimed a deduction for the charitable contribution of African art in
her tax filings. She told Pierson that she might be able to do the same thing.
According to Krista, Pierson seemed interested in the prospect of taking a
similar deduction on her taxes. Krista testified that she had this conversation
with Pierson sometime in “the beginning” of 2007.
Carter himself was the last to testify. Carter received an accounting
degree in 1973 from the University of Houston. In college, he took two classes
in federal tax preparation. Following graduation, Carter began working at
Tenneco, where he worked in accounting. Amongst his duties were authorizing
expenditures and overseeing payroll. He did not specialize in tax at Tenneco,
explaining that the company had its own tax department. He worked at
Tenneco for 16 years until he left in December 1988.
Carter testified that he began preparing taxes around 1996 or 1997.
According to Carter, he “[b]ought some software and just started doing taxes.”
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He explained that he purchased TurboTax but did not take any tax courses.
Carter did not advertise his tax preparation business but instead obtained
clients via referrals.
Carter first learned about making deductions for charitable
contributions of art through his brother, Robert, around the year 2000. At this
time, Carter was preparing Robert’s tax returns for him and Robert brought
him a portfolio of African art that he had donated. Carter testified that other
clients eventually began to come to him to ask him for help making donations
of art for tax deduction purposes. According to Carter, these clients already
knew about the ability to claim deductions for the donation of art. Carter
testified that he began to purchase art on behalf of his clients from “people
from Africa that are just in the shadows.” Carter explained that these people
“come over, sell their art and go back.” These people only accepted cash. After
purchasing the art, Carter would take the art to Jarra in order to be appraised.
Carter testified that he did not know what the art was worth when he
purchased it. According to Carter, Jarra had “total control of the art” once he
delivered it to him. Jarra would appraise the art, have it delivered to the
donee, and prepare the form 8283. Carter did not keep any inventory of the
art he purchased for his clients or how much he had paid for each piece.
Carter then testified regarding his communications with the clients
whose returns were the subject of his prosecution. Carter testified that he met
Estill around 2007 through his brother, Robert. According to Carter, Estill
“wanted to get the same kind of charitable deduction that Robert was taking
each year of African art.” Carter testified that Estill already knew about the
African art donation deduction prior to meeting with him. Estill and Carter
met and discussed Carter’s “two-part” strategy. The first step was
incorporation of Estill’s business, which Carter did for Estill in October 2007.
The second step was having Estill “buy some [art] and get it appraised and
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donate it.” Estill told Carter that “he wanted three $500,000 deductions and
to buy whatever art it was to get that amount.” Carter testified that he
“already had” most of the art necessary for Estill’s donation, but “had to buy a
few pieces, because it was such a large donation.” According to Carter, he used
money that he had taken out on a home equity loan in order to buy Estill’s art.
Carter explained that “because [Estill] was a friend of my brother’s and he
authorized the purchase, I went ahead and took him at his word and paid for
the art.” However, Carter did not have a written contract with Estill since he
works “on the honor system.” Carter testified that he was not worried about
Estill failing to pay because he was a friend of Carter’s brother and “if he didn’t
pay, I would expect my brother Robert to pay.” Carter testified that Estill gave
him a $54,000 check for the art in 2008. Although Carter initially testified
that he spent “maybe a hundred thousand dollars” on Estill’s art, he later
testified that he could not provide a specific amount. He testified that it was
not less than the $54,000 that Estill paid. However, he did not know if it was
more than that amount. He did not keep any records of the purchase. On the
2007 return, the art was valued at approximately $500,000.
Carter testified that he met Pierson when she attended college with his
daughter, Krista. In 2007, he received a call from Pierson requesting that
Carter prepare her taxes. Pierson told him that she wanted “to get an art
donation just like Krista had.” According to Carter, Pierson “had credit” with
him since she was Krista’s friend, so Carter purchased the art himself and then
took it to Jarra to get the process started. Pierson agreed to pay Carter 40% of
her return in exchange for the purchase of the art claimed to be donated.
Carter did not keep a record of how much he paid for the art and he could not
recall how much he had invested.
Carter testified that he met Hightower through another client, Art
Walters, sometime around May 2007. Carter entered into a 60/40 deal with
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Hightower and therefore was not paid by Hightower until after he filed his
2007 return. Carter did not enter into a written agreement with Hightower
regarding the art purchase and donation. Their agreement was on a “trust
basis.” According to Carter, if Hightower had not paid, then he would “have
expected Art Walters to have paid” him.
Carter testified that he also initially met Patterson through Art Walters,
who was Patterson’s brother-in-law. Patterson first visited with Carter in 2005
or 2006. According to Carter, Patterson “knew all of the tax strategies that Art
Walters was doing” and eventually, in 2007, authorized Carter to facilitate an
art donation on his behalf for tax purposes. This authorization followed a “year
or two” of Patterson being “on the fence.” Patterson told Carter that “he didn’t
have any funds.” However, Carter told Patterson that he would “get it done”
for him because he was Walter’s brother-in-law. Carter testified that
Patterson “was going to pay [him] some money when he got it.” Carter
purchased the art for Patterson, and Patterson wrote Carter a check for $5,000
in 2008.
Carter testified that he was not aware that a taxpayer had to hold art
for a year prior to donating it in order to claim a deduction for the fair market
value of the art. He stated that he first became aware of this rule when he was
interviewed by Agent Greer. He testified that he had never seen Publication
526, i.e., the pamphlet discussed by Agent Greer that specified this rule. He
further explained that he had never checked the instructions for the form 8283
or any other IRS publication concerning this issue. However, he testified that
he was aware of the rule permitting a taxpayer to “carryover” any unused
portion of a charitable contribution into subsequent years. He also testified
that he was aware of the one-year holding rule for capital gains. Carter also
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claimed that he was unaware that Jarra was “backdating” the forms 8283 for
the returns at issue in this case.
In his proposed jury instructions, Carter had requested that the jury
receive the following instruction:
The government must prove beyond a reasonable doubt that the
Defendant acted willfully. A defendant does not act willfully if he
believes in good faith that his actions comply with the law.
Therefore, if the Defendant believed that what he was doing was
in accord with the tax statutes, he cannot be said to have acted
with criminal intent. Therefore, if you find that the Defendant
honestly believed that he was not violating the tax laws, even if
that belief was unreasonable or irrational, then you should find
him not guilty. However, you may consider whether the
Defendant’s belief was actually reasonable as a factor in deciding
whether he held that good faith belief.
The burden of establishing lack of good faith and criminal intent
rests upon the prosecution. A defendant is under no burden to
prove his good faith; rather, the prosecution must prove bad faith
beyond a reasonable doubt.
The Government objected to the instruction on the grounds that the second
paragraph was an incorrect statement of law. During a pretrial conference,
defense counsel admitted that the Government’s objection was meritorious but
maintained that the remainder of the instruction was correct.
During trial, before the jury was instructed, defense counsel again
argued that the willfulness instruction should inform the jury “that a good
faith belief may be objectively unreasonable if sincerely held.” Counsel averred
that, under Cheek, “if the defendant ultimately believed that he was not
violating any tax laws, even if that belief is unreasonable or irrational, then
you should find him not guilty.” The district court disagreed with the defense’s
interpretation of Cheek and therefore refused to provide the requested
instruction. The jury was instead instructed that:
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Carter’s acts in connection with income tax returns are not willful
if they are done through inadvertence, carelessness, justified
excuse, or honest misunderstanding of the law.
The defendant is not guilty of willfully preparing a false or
fraudulent return if he in good faith believes that the return, as he
prepared it, truthfully reports the client’s income-tax information.
Even if the income was understated or the deductions or credits
were overstated, he is not guilty unless he knew the return to be
false and authorized its filing with the intent to violate the law.
The jury acquitted Carter of the conspiracy count but convicted him of
five counts of willfully aiding the preparation of false tax returns. The district
court imposed a within-guidelines sentence of 41 months in prison and a one-
year term of supervised release. Carter timely noticed his appeal.
II.
Carter’s sole argument on appeal is that the district court committed
reversible error by failing to include in its willfulness instruction to the jury
“that a good faith belief may be objectively unreasonable if sincerely held.” In
view of the Government’s concession that the district court committed error,
we simply review for harmless error. Thus, the salient question before us is
whether, “in light of the entire record, the challenged instruction could not
have affected the outcome of the case.” United States v. Demmitt, 706 F.3d
665, 675 (5th Cir. 2013) (internal quotation marks omitted); see also United
States v. Nguyen, 493 F.3d 613, 623 (5th Cir. 2007) (same).
Applying that standard to the instant record, we conclude that the
district court’s error was harmless and therefore not reversible because the
evidence at trial showing Carter willfully aided in the preparation of false tax
returns “was so overwhelming that the error could not have contributed to the
jury’s decision to convict.” United States v. Montgomery, 747 F.3d 303, 310 (5th
Cir. 2014) (internal quotation marks and citation omitted). In particular, the
evidence in support of the Government’s “backdating” theory of prosecution is
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“overwhelming” and evinces that the district court’s refusal to provide Carter’s
requested instruction did not affect the jury’s verdict. Id. As detailed above,
the Government presented substantial evidence at trial showing that Carter
knew that the tax returns were fraudulent because the art claimed to be
donated in 2007 was actually donated in 2008. IRS agent Michael Greer
testified that a deduction for an art donation may be claimed only in the year
in which art is actually donated. Unlike the one-year holding rule for claiming
a deduction of donated art’s fair market value, Carter never testified or
otherwise argued in his defense that he was unaware of the rule requiring that
the deduction be claimed in the same year as the donation. Each of the tax
returns prepared and filed by Carter included forms 8283 that were dated
December 11, 2007. This date purports to reflect both the date that the art
appraisal occurred and the date that the art was actually donated by Carter’s
clients. However, as detailed below, all four of Carter’s clients consistently
testified that they never owned any of the art in 2007.
Estill testified that he did not discuss with Carter the possibility of
donating art for tax purposes until 2008. Estill further testified that he never
purchased any art until 2008 when he gave Carter the check in the amount of
$54,000 in March 2008. Nevertheless, Estill’s 2007 and 2008 tax returns
prepared and filed by Carter both contain forms 8283 that represent that Estill
donated art in 2007. Similarly, although Pierson could not definitively recall
whether she first discussed her taxes with Carter in 2007 or 2008, she testified
unequivocally that she did not own or donate any pieces of art in 2007, and she
never understood that she had purchased any art. Nevertheless, her tax
return prepared and filed by Carter showed a donation of African art in 2007
worth $275,000 to a library in South Carolina. Likewise, Hightower testified
that he first met Carter sometime around March 2008 and it was only then
that they discussed Carter preparing Hightower’s 2007 tax return and the
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possibility of making a charitable contribution of art for the 2007 return.
Accordingly, Hightower never made any payments to Carter for the purchase
of art in 2007, and he testified that he never owned any of these pieces of art
in 2007. Nevertheless, Hightower’s tax returns prepared by Carter
represented that he had donated art on December 11, 2007. Finally, Patterson
also testified that he did not meet with Carter about his 2007 return until 2008
and that it was only at this point in time that Carter discussed with him the
possibility of donating art for tax purposes. Yet, Patterson’s return also
claimed that he had donated art in 2007. Patterson never paid Carter for the
art claimed to be donated in 2007.
Consistent with Carter’s clients’ testimony, Jarra testified that he did
not receive the art from Carter to appraise until 2008, and that Jarra did not
deliver the art to the donees or obtain the donees’ signatures until 2008. Jarra
further testified that Carter specifically had instructed him to backdate the
forms 8283 to 2007 and Carter was therefore aware that the forms were
backdated by Jarra.
There was also other evidence reflecting Carter’s awareness that the tax
returns he prepared were fraudulent. For example, Agent Greer testified—
and Carter admitted—that Carter destroyed copies of various forms 8283 in
his possession after Greer’s first interview of him. Further, Carter refused to
sign the relevant tax returns under penalty of perjury, as is required of tax
preparers.
Carter argues that the jury’s acquittal of him on the conspiracy count
“speaks strongly to the weight that can be given to the backdating scheme in a
harm analysis.” According to Carter, the Government’s “backdating” theory of
prosecution “overtly relies on an agreement between Mr. Jarra and Mr. Carter
to effectuate the backdating scheme.” We disagree. The thrust of Carter’s
argument is that the jury’s acquittal on the conspiracy count represents an
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implicit rejection of Jarra’s trial testimony that Carter expressly instructed
him to backdate the forms 8283, to which Jarra consented. However, even if
we were to disregard Jarra’s testimony that Carter specifically instructed him
to backdate the forms, there is nevertheless overwhelming and consistent
testimony from Carter’s various clients that they never purchased or donated
any art in 2007 and that they never even discussed the possibility of an art
donation with Carter until 2008. In other words, even ignoring evidence
indicating that Carter and Jarra entered into an express agreement to
“backdate” the forms 8283, there is nevertheless overwhelming evidence
showing that Carter willfully aided and assisted in the preparation of
fraudulent tax returns as charged in the indictment.
For these reasons, the judgment of the district court is AFFIRMED.
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