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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-15299
________________________
D.C. Docket No. 2:16-cr-00326-MHT-SRW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD LEE GRAHAM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(December 4, 2020)
Before GRANT, MARCUS, and JULIE CARNES, Circuit Judges.
GRANT, Circuit Judge:
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The IRS spent years trying to collect overdue taxes from Richard Graham.
Five years into the process, Graham attempted to satisfy his tax obligations once
and for all—with a fraudulent $3.6 million check known as an international bill of
exchange. When he was caught, a jury convicted him of passing a fictitious
financial instrument, in violation of 18 U.S.C. § 514(a)(2), and of corruptly
endeavoring to obstruct the administration of the Internal Revenue Code, in
violation of 26 U.S.C. § 7212(a). That second conviction is the main focus of this
appeal.
Not long ago in this Circuit, the government could have convicted Graham
under § 7212(a) by proving only that he (1) “knowingly tried to obstruct or impede
the due administration of the internal revenue laws,” and (2) “did so corruptly.”
United States v. Croteau, 819 F.3d 1293, 1307–08 (11th Cir. 2016). But recently
the Supreme Court added a third element. Now, the government must also prove a
“nexus between the defendant’s conduct and a particular administrative
proceeding, such as an investigation, an audit, or other targeted administrative
action.” Marinello v. United States, 138 S. Ct. 1101, 1109 (2018) (quotation marks
omitted). The question for us is whether the IRS’s collection activity qualifies as a
“particular administrative proceeding.” We hold that it does. Because there was
sufficient evidence of a nexus to support Graham’s conviction and because we
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reject his laundry list of objections to the district court’s evidentiary rulings, we
affirm.
I.
Graham earned a fortune running bingo games. But from 2006 through
2009, he paid only a portion of his income taxes. Penalties and interest accrued on
the unpaid taxes, and eventually the IRS came to collect.
The IRS assigned Revenue Officer Lawrence Barron to Graham’s case. In
2009, Barron sent Graham a final notice of “intent to levy”—stating that the IRS
planned to levy his assets and that it could file a notice of federal tax lien on his
property. After that, Barron began making repeated contact with Graham and
reported that he and his attorneys were always prompt in responding. Graham was
not, however, prompt in making full payment. Instead, he would make smaller
payments that did not satisfy his debt. In 2012, a second IRS officer, Linda
Brown, took over the case and began sending regular lien and levy notices to
Graham. Under Brown’s supervision, the IRS confiscated and sold several pieces
of Graham’s real estate. But even these sales didn’t satisfy the debt. In June 2014,
the IRS sent him a notice of levy informing him that his tax liability totaled just
under $3.6 million.
Around that time, Graham met Thomas Walker, who claimed to specialize in
“credit repair.” Walker told Graham that he knew of “some people” who could
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“help use a bill of exchange” to pay off his taxes and promised to help for the low
price of $10,000.
Graham paid the fee and Walker put him in contact with two men—Ben and
James—who sent a packet of documents to Walker. In July 2014, Walker and
Graham went together to the IRS building in Montgomery, Alabama, to deliver
these documents, which included a $3.6 million check entitled an “international
bill of exchange,” a copy of the notice of levy that Graham had received a month
earlier, and a signed statement that Graham was not an “individual” under the tax
code and that he was “not subject to any revenue tax or tax withholding.”
The IRS employee assisting Graham was skeptical about the bill of
exchange’s validity, so she privately consulted with her manager and a special
agent. The special agent, agreeing that the check “looked suspicious,” advised
accepting but not processing it. The employee returned stamped copies of the
documents to Walker and Graham and provided the originals to the special agent.
Graham repeated this ruse three more times that summer—once at the Birmingham
IRS office and twice at the Alabama Department of Revenue.
The international bills of exchange were indeed suspicious, and soon
discovered to be fraudulent. A grand jury indicted Graham on one count of
passing a fictitious financial instrument, in violation of 18 U.S.C. § 514(a)(2), and
one count of corruptly endeavoring to obstruct the administration of the internal
revenue laws, in violation of 26 U.S.C. § 7212(a).1 Graham opted to go to trial and
1
In 2018, the government sought a superseding indictment to ensure that the indictment
complied with Marinello v. United States, 138 S. Ct. 1101 (2018).
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was convicted on both counts. The district court denied Graham’s motion for
judgment of acquittal and sentenced him to 48 months of imprisonment. Graham
now appeals, challenging the sufficiency of the evidence for his § 7212(a)
conviction and several of the district court’s evidentiary rulings.
II.
We turn first to Graham’s argument that there was insufficient evidence of a
nexus between his actions and an administrative proceeding. We review de novo
the sufficiency of the evidence to support a conviction, affirming the jury’s verdict
if “any reasonable construction of the evidence would have allowed the jury to find
the defendant guilty beyond a reasonable doubt.” United States v. Crabtree, 878
F.3d 1274, 1284 (11th Cir. 2018) (quotation marks omitted).
The Omnibus Clause of § 7212(a) makes it a felony when a defendant
“corruptly or by force . . . endeavors to obstruct or impede, the due administration
of” the Internal Revenue Code. See 26 U.S.C. § 7212(a). District courts in this
Circuit have traditionally informed juries that a conviction under this statute must
be supported by two elements: that the defendant (1) “knowingly tried to obstruct
or impede the due administration of the internal revenue laws,” and (2) “did so
corruptly.” See, e.g., Croteau, 819 F.3d at 1307–08 (citing jury instructions). The
Supreme Court’s recent decision in Marinello v. United States changed that. 138
S. Ct. at 1109.
In Marinello, the Supreme Court took issue with the potentially expansive
range of conduct that could qualify as “obstruct[ing] or imped[ing], the due
administration of” the Internal Revenue Code. 26 U.S.C. § 7212(a). This phrase,
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it noted, could transform any and all tax violations into felonies. Marinello, 138 S.
Ct. at 1107. It could make a felon of any “person who pays a babysitter $41 per
week in cash without withholding taxes, leaves a large cash tip in a restaurant, fails
to keep donation receipts from every charity to which he or she contributes, or fails
to provide every record to an accountant.” Id. at 1108 (citations omitted). That,
the Court surmised, Congress could not have intended. Id.
The Court’s solution was to read a third element—a “nexus” element—into
the statute. Id. at 1109. That is, it held that to “secure a conviction under the
Omnibus Clause, the Government must show (among other things) that there is a
‘nexus’ between the defendant’s conduct and a particular administrative
proceeding, such as an investigation, an audit, or other targeted administrative
action.” Id. While it declined to “exhaustively itemize the types of administrative
conduct that fall within the scope of the statute,” it emphasized that the defendant
must do something more than interfere with “routine, day-to-day work carried out
in the ordinary course by the IRS, such as the review of tax returns.” Id. at 1110.
The obstructive act needed to have a “relationship in time, causation, or logic with
the [administrative] proceeding.” Id. at 1109 (quoting United States v. Aguilar,
515 U.S. 593, 599 (1995)) (alteration in original).
So, the question is, did Graham’s submission of a falsified bill of exchange
to the IRS have a “relationship in time, causation, or logic” with some
administrative proceeding? Graham thinks not. He suggests that “liens, levies,
and related notices” do not qualify as “administrative proceedings” under
Marinello. A “proceeding,” he argues, must “take place over a period of time, akin
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to a grand jury proceeding or other investigatory proceeding,” where there is
“summoning of witnesses and documents” and “questioning under oath.” And the
IRS’s tax collection activities do not bear those particular marks.
Our Court has not had occasion to further define the “nexus” requirement
since Marinello. But we do not think the Court’s definition of a “proceeding” was
so narrow. The Supreme Court nowhere suggested that a defendant must interfere
with a quasi-judicial proceeding—like Graham describes—to violate the Omnibus
Clause. Indeed, the Court was careful not to identify exhaustively what qualified
as an “administrative proceeding” or “other targeted administrative action.” Id. at
1109–10. Its concern, instead, was to exclude relatively innocuous conduct from
prosecution under the Omnibus Clause. Id. The government could not prosecute
someone for interfering with “routine, day-to-day work carried out in the ordinary
course by the IRS, such as the review of tax returns.” Id. There had to be
something more—some “targeted administrative action.” Id. at 1109.
We need not draw a perimeter setting out what that “something more”
encompasses. This is not a borderline case. For years, the IRS took targeted
administrative action against Graham well beyond the “ordinary course” of the
agency’s interaction with taxpayers. It began to take specific steps to collect on
Graham’s tax debt in 2009. It assigned two revenue officers to his case over a
five-year period. These officers issued him notices of liens and levies. They
oversaw seizure and sale of some of his property. And only weeks before Graham
submitted the international bill of exchange, the IRS sent him another notice of
levy reminding him that he owed about $3.6 million. He even attached a copy of
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this notice to the $3.6 million bill of exchange that he provided to the IRS. The
IRS’s regular and persistent contact with Graham went well beyond the “routine,
day-to-day work” of the agency and we have no difficulty concluding that this
collection action qualified as a “targeted administrative action.” See id. at 1109–
10.
Nor do we think there is any merit to Graham’s second argument that no
nexus existed. On appeal—for the first time—Graham argues that there was also
no nexus between his submission of the bill of exchange and the IRS’s collection
action because his actions did not have the “natural and probable effect” of “doing
anything to any lien, levy or seizure.” In other words, since his plan was so bad
that it had no chance of working, he should get off scot-free.
We don’t buy it. Since Graham failed to raise this issue before the district
court, we review this new challenge only for plain error. United States v. Baston,
818 F.3d 651, 664 (11th Cir. 2016). Neither the Supreme Court nor our Court has
ever read a “likelihood of success” element into § 7212(a). Our Court has held that
the “government is not required to prove that the administration of the internal
revenue laws was actually obstructed or impeded, but only that the defendant
corruptly attempted to do so.” Croteau, 819 F.3d at 1308 (emphasis added).2
When the “explicit language of a statute or rule does not specifically resolve an
issue, there can be no plain error where there is no precedent from the Supreme
Court or this Court directly resolving it.” United States v. Lejarde-Rada, 319 F.3d
2
Though we decided Croteau before Marinello, nothing in the Court’s decision alters this
analysis.
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1288, 1291 (11th Cir. 2003). Since Graham points to nothing in § 7212(a) itself
nor any binding precedent requiring the government to show Graham’s plan was
likely to succeed, we must affirm the district court.
III.
We turn next to Graham’s evidentiary challenges. The thrust of his trial
defense was that he was the “victim of a fraud, not the perpetrator of one.” He
believes that the district court “gutted” his ability to offer this defense with several
adverse evidentiary rulings and kept him from telling his “competing story.” So on
appeal, he challenges (1) the limitations placed on Thomas Walker’s testimony;
(2) exclusion of the government’s expert witness’s answer to a cross-examination
question; and (3) exclusion of evidence that Graham made “good-faith” efforts to
comply with the IRS and pay his debt. He also objects to the district court’s
admission of a past tax conviction as Rule 404(b) evidence.
We review preserved objections to evidentiary rulings for abuse of
discretion. United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir. 2010). But
when a party failed to object to an evidentiary ruling at trial, we review only for
plain error. Fed. R. Evid. 103(e); United States v. Hesser, 800 F.3d 1310, 1324
(11th Cir. 2015). “To find plain error, there must be: (1) error, (2) that is plain, and
(3) that has affected the defendant’s substantial rights.” Hesser, 800 F.3d at 1324
(quotation omitted). And if we find that these conditions are met, we may exercise
our discretion to correct a forfeited error, “but only if the error seriously affect[s]
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the fairness, integrity or public reputation of judicial proceedings.” Id. (quotation
omitted) (alteration in original).
Graham argues that we should not review any of his evidentiary challenges
under plain error review because—in all instances where he failed to offer
argument—the district court sustained the government’s objection and excluded
Graham’s evidence without hearing from the defense. Yet under the Federal Rules
of Evidence, to preserve an objection to the district court’s exclusion of evidence,
the proponent is obligated to inform the court of the evidence’s substance “by an
offer of proof.” Fed. R. Evid. 103(a)(2). This means that Graham needed to “first,
describe the evidence and what it tends to show and, second, identify the grounds
for admitting the evidence.” United States v. Adams, 271 F.3d 1236, 1241 (10th
Cir. 2001); see also United States v. Ballis, 28 F.3d 1399, 1406 (5th Cir. 1994) (a
proponent must inform the court of what he “intends to show by the evidence and
why it should be admitted,” so that the appellate court can “adequately examine the
propriety and harmfulness of the ruling”).
Here, the district court may not have asked for argument on each
government objection, but the record also contains no hint that Graham made any
effort to provide the court with an offer of proof for certain excluded evidence.
Indeed, we have previously rejected a similar argument where the defendant
complained “that the district court did not allow him to proffer the evidence he
would have sought to elicit from” a witness. United States v. Baptista-Rodriguez,
17 F.3d 1354, 1372 n.27 (11th Cir. 1994). In response, we “reaffirm[ed] our
precedent stressing the importance of counsel making and courts accepting proffers
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of evidence,” including that our Circuit “will not even consider the propriety of the
decision to exclude the evidence at issue, if no offer of proof was made at trial.”
Id. (quoting United States v. Winkle, 587 F.2d 705, 710 (5th Cir. 1979)). We
therefore will review all arguments where Graham failed to proffer evidence only
for plain error. Fed. R. Evid. 103(e).
A.
Much of Graham’s case hinged on Thomas Walker’s testimony. Walker,
after all, was the one who introduced Graham to Ben and James, who helped him
obtain the fake international bills of exchange, who went to the Montgomery IRS
building with Graham on July 11, and who “did all the talking” with the IRS
employees that day. So it was through Walker that Graham planned to advance his
“victim of a fraud” defense. He singles out three evidentiary rulings during
Walker’s testimony that, he claims, wrongly prevented him from advancing this
defense.
First, the district court prevented Walker from testifying about whether he
personally believed that the international bills of exchange were valid forms of
payment. At trial, Graham’s counsel tried to ask Walker whether he believed that
the international bills of exchange “were valid forms of payment for Mr. Graham’s
taxes,” whether Walker acted “in good-faith reliance on the advice Ben gave” him,
and whether he felt he was “defrauded by Ben and James.” The court sustained the
government’s objections that this testimony was irrelevant. Graham offered no
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argument on these objections and moved on to other questions, so we review this
argument now for plain error. See Fed. R. Evid. 103(e).
Under Rule 401 of the Federal Rules of Evidence, evidence is relevant if it
“has any tendency to make a fact more or less probable than it would be without
the evidence” and “the fact is of consequence in determining the action.” Fed. R.
Evid. 401(a)–(b). The question, then, is whether Walker’s subjective belief that the
bills of exchange were or were not genuine made it any more likely that Graham
thought the bills were valid. Here, only on appeal, Graham suggests that if
“Walker believed the documents were valid,” it would be “more likely that
Graham, too, believed the documents to be valid and was the victim” of Ben and
James’s fraud.
But how? Graham did not present evidence that Walker assured him of the
instruments’ authenticity. Maybe Walker was fooled by Ben and James; maybe he
wasn’t. What mattered at trial was what Graham knew and thought. The
government had the burden of demonstrating that Graham acted “corruptly,” which
meant that he acted “knowingly and dishonestly with the specific intent to secure
an unlawful benefit.” United States v. Dean, 487 F.3d 840, 853 (11th Cir. 2007)
(quoting Eleventh Circuit Pattern Jury Instructions, Criminal 97 (2003)). What
Walker knew and thought had no bearing on Graham’s own intent, particularly
given that no evidence was ever offered to show that Walker expressed these
thoughts to Graham. We have no quarrel with the district court’s conclusion that
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what Walker—who was not a co-defendant—“did or didn’t do,” what “he thought
or didn’t think,” did not matter.
Even if it were relevant whether Walker felt he was defrauded or acted in
good faith, Graham has not shown how exclusion of this evidence affected his
substantial rights—an essential element of showing plain error. United States v.
Edwards, 696 F.2d 1277, 1281 (11th Cir. 1983). Indeed, though this particular
testimony was excluded, the district court did allow Walker to answer similar
questions. The jury may not have heard what Walker thought about the
documents, but they still heard his testimony that he was, supposedly, acting in
good faith and that Graham didn’t know what was happening. They just didn’t
believe it.
Second, Graham suggests that during Walker’s testimony, the district court
should have admitted documents that Walker and Graham allegedly received from
Ben and James in November 2014—after the charged offenses occurred. The court
also excluded this evidence on relevancy grounds.
Graham proffered at trial that the obvious falsity of the documents was
“relevant to intent because it shows at some point, we realized that this may not be
on the up and up,” and the documents “triggered his realization.” But Graham
attempted to admit the evidence during Walker’s testimony—not his own. And he
never proffered that he told Walker that this was when the scales fell from his eyes
and he realized that everything had been a hoax. At most, Walker could have
testified that he suddenly realized he’d been scammed by Ben and James. Yet
even that testimony suffers from the same problem as before: ultimately, it is
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irrelevant what Walker believed, thought, or realized. Unless he communicated
those thoughts to Graham or Graham communicated similar concerns to Walker,
none of this testimony goes to prove or disprove Graham’s intent. The district
court specifically noted that the November 2014 documents may be relevant if
Graham had testified that he “actually received this and that’s when he started
thinking something” was up. But the documents were irrelevant during Walker’s
testimony.
Third, Graham claims that the district court should have let Walker tell the
jury what Ben and James told him about the documents. Graham’s attorney asked
Walker whether he “put Mr. Graham in connection with” Ben and James, which
Walker affirmed. The attorney then asked, “Now, ultimately, did you understand
that there was some type of way to eliminate tax debt?” Walker answered, “Yes,
sir.” The prosecutor objected and the court struck the response, saying that Walker
needed to “lay a foundation as to how he knows that’s not predicated upon
hearsay.” Graham’s attorney agreed and moved on. Now, on appeal, Graham
claims that the district court improperly excluded the evidence because the “point,
quite obviously, was not to prove the truth of what” Ben and James were saying
about the international bills of exchange, but “to ask about Walker’s
‘understand[ing]’ from them.” Again, because Graham failed to raise this issue
below, we review only for plain error.
At the beginning of Walker’s testimony, he affirmed that tax elimination
“wasn’t something [he] did, but [he] knew of a couple people” who handled that—
Ben and James. So, when Graham’s attorney asked him if he understood that
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“there was some type of way to eliminate tax debt,” in context it appeared that
Walker was relying on things Ben and James had told him in their conversations.
In other words, Walker’s answer required him to rely on hearsay. So, after the
prosecutor objected, the district court instructed Graham’s attorney to lay
foundation for the answer. Rather than lay that foundation or explain to the judge
that Ben and James’s statements were not being offered for the truth of the matter
asserted, the attorney acknowledged the court’s point and moved on to other
questions.
In doing so, Graham conceded that the statements were being offered for the
truth of the matter asserted. He cannot switch tactics now to try to argue the
statements should have been admitted on a different basis. Quite simply, when a
party tries to admit evidence for one purpose, it cannot be plain error for the
district court not to admit it for another, unnamed, purpose. See United States v.
Clotaire, 963 F.3d 1288, 1297 (11th Cir. 2020) (no plain error to exclude evidence
when the proponent “gave no indication that the email was offered for anything
other than proof of the matter asserted” at trial). “No legal rule required the trial
court to suggest” that Graham try to enter the evidence for something other than
the truth of the matter asserted, “so its failure to do so was not error.” Id.
* * *
Graham may be unhappy about the ways that the district court restricted
Walker’s testimony, but the court did not prevent Graham from completing his
story. What the court excluded was Walker’s story—what Walker thought,
believed, and realized. Had Graham drawn any connection between how Walker’s
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subjective belief impacted him, the result may have been different. But absent
that, we cannot say that the district court erred here.
B.
The district court also did not err in admitting Graham’s earlier
misdemeanor conviction and plea agreement for failing to file a tax return.
Though the government may not provide evidence of a crime or conviction to
“prove a person’s character” as a way of showing that the person acted in
conformity with that character, it may offer this evidence to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Fed. R. Evid. 404(b)(1)–(2). Graham’s conviction was validly
offered for at least one of these purposes.
Twelve years before his trial, Graham pleaded guilty to failing to file his
2002 tax return. In doing so, he acknowledged that he was obligated to file federal
income tax returns. But among the documents that he submitted to the IRS in July
2014 was one that claimed that he was not an “individual” as defined by the tax
code, “subject to the jurisdiction of the United States,” or “subject to any revenue
tax or tax withholding.” In other words, the document he submitted to the IRS
directly contradicted something he admitted in his earlier plea. This contradiction
went to show that Graham had knowledge that the documents he provided to the
IRS were false—indicating “absence of mistake” or “lack of accident.” See Fed.
R. Evid. 404(b)(2). The district court provided the jury with a limiting
instruction—both when the evidence was introduced and in its final jury
instructions—clarifying that the evidence was admitted only to show intent,
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knowledge, and absence of mistake, not “as any type of character evidence to show
that he did something before and he might do it again.” The prior conviction,
therefore, was properly offered as Rule 404(b) evidence.
C.
Graham raises two final evidentiary issues. First, he challenges exclusion of
an answer from the government’s expert witness during cross-examination.
Second, Graham argues that the district court improperly excluded several pieces
of evidence that tended to show that he acted in good faith in his interactions with
the IRS. The district court did not err in either of these rulings.
The government provided expert testimony from a U.S. Treasury
Department employee about the fictitious international bills of exchange that
Graham provided to the IRS. This expert described the bills of exchange to the
jury, explaining which features made each one “look like a true financial
instrument” and which elements indicated that the instruments were fictitious. On
cross-examination, Graham’s attorney asked whether it might be “easy” for an
“average person” to be “taken in” by the fictitious bills. The government objected
that the answer called for speculation and the court agreed. Graham’s attorney
immediately moved on to another question.
Graham now argues that the district court erred because the expert witness
was qualified to answer this question. Again, because Graham’s attorney failed to
provide an offer of proof, we review for plain error. And again, that standard is
fatal to Graham’s argument. The government’s witness may well have been
qualified to testify about whether an “average person” could be fooled by the
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fictitious instrument. But even if so, Graham has not shown that this error in any
way affected his substantial rights, both because there was ample evidence that the
bills appeared real in many respects and because the jury was able to see the bills
and evaluate for themselves whether they—as average people—would be fooled.
And so we cannot say that the district court reversibly erred.
Finally, Graham appeals the district court’s exclusion of evidence of his
“good faith desire to cooperate with the IRS, and an absence of obstructive intent,
both before and after the summer of 2014.” Graham tried to introduce evidence of
his tax compliance after 2014, his refusal to appeal the assessments, liens, and
levies issued by the IRS, and his refusal to file for bankruptcy while in debt to the
IRS. He believes all this evidence shows that he had good-faith intent to pay the
IRS debt.
But “[e]vidence of good conduct is not admissible to negate criminal intent.”
United States v. Camejo, 929 F.2d 610, 613 (11th Cir. 1991); see also United
States v. Ellisor, 522 F.3d 1255, 1270–71 (11th Cir. 2008) (“specific acts of good
character” are inadmissible under Federal Rules of Evidence 404(b) and 405(b) to
prove the defendant acted in “conformity”). Graham tried to introduce this
evidence to suggest that since he, on other occasions, complied with the IRS, on
this occasion he must also have acted in conformity with his good character. See
United States v. Marrero, 904 F.2d 251, 260 (5th Cir. 1990). Because any
evidence tending to show conduct in conformity with good character is improper
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under the Federal Rules of Evidence, the district court acted properly in excluding
this evidence.
* * *
Graham hoped to use a fictitious bill of exchange to end his five-year saga
with the IRS once and for all. He ended up, instead, with two felony convictions.
We have no doubt that five years of the IRS’s targeted collection action qualified
as an administrative proceeding, satisfying Marinello’s nexus requirement. For
that reason, and because we reject his challenges to the district court’s evidentiary
rulings, we AFFIRM Graham’s convictions.
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