[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 15, 2007
No. 07-10451 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00101-CR-T-S
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MATTHEW OKONKWO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(August 15, 2007)
Before DUBINA, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Matthew Okonkwo appeals his conviction for one count of conspiracy to
defraud the United States, in violation of 18 U.S.C. § 371, and eleven counts of
aiding and abetting the filing of a false income tax return, in violation of 26 U.S.C.
§ 7206(2). Okonkwo argues on appeal that the trial evidence failed to support his
convictions. As to the conspiracy to defraud count, he asserts that the evidence
showed only that he and John Adewunmi, his alleged co-conspirator, worked at the
same tax preparation business. As to the remaining counts, he argues that no
evidence linked him to Adewunmi’s preparation of fraudulent tax returns, and that
Adewunmi was acting by himself. In support, he points out that only one of the
people whose tax returns were at issue ever saw or met him and only one witness
placed Okonkwo in the same room as Adewunmi. Finally, Okonkwo argues that
the government failed to prove that he knowingly and willfully filed the fraudulent
tax returns.
We review a challenge to the sufficiency of the evidence de novo, viewing
the evidence in the light most favorable to the prosecution. United States v.
Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003); Jackson v. Virginia, 443 U.S. 307,
319 (1979). “The elements of a conspiracy under 18 U.S.C. § 371 are (1) an
agreement among two or more persons to achieve an unlawful objective; (2)
knowing and voluntary participation in the agreement; and (3) an overt act by a
conspirator in furtherance of the agreement.” Hasson, 333 F.3d at 1270. “To
prove knowing and voluntary participation, the government must prove beyond a
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reasonable doubt that appellants had a specific intent to join the conspiracy,”
although a common purpose and plan may be inferred from the circumstances.
United States v. Calderon, 127 F.3d 1314, 1326 (11th Cir. 1997), modified on
other grounds by United States v. Toler, 144 F.3d 1423, 1427 (11th Cir. 1998).
It is a felony to “willfully aid[] or assist[] in . . . the preparation or
presentation . . . of a return . . . which is fraudulent or is false as to any material
matter.” 26 U.S.C. § 7206(2). “In a prosecution under 26 U.S.C.[] § 7206(2), the
element of willfulness or intent is usually the most difficult to prove,” and will
usually be proven through circumstantial evidence, such as repetitive or evasive
conduct. United States v. Brown, 548 F.2d 1194, 1199 (5th Cir. 1977).1
After reviewing the record, we conclude that there was sufficient evidence to
allow the jury to find that there was an agreement between Adewunmi and
Okonkwo to conspire to defraud the government, and that Okonkwo had the intent
to do so. Okonkwo admitted to being the president of Eagle Financial Services
(“EFS”) and doing business as Rainbow Tax Service (“RTS”), the businesses that
were listed as the tax preparers for all but one of the fraudulent returns.2 Okonkwo
stated that he was the only person to electronically file the 1999 tax returns for his
1
We adopted as binding precedent all Fifth Circuit decisions issued prior to October 1,
1981. Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
2
The one return that does not list EFS or RTS as the tax preparer does not contain any
information or signature as to the filer or preparer of the return.
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business—the year in which the fraudulent returns were filed. Testimony from
several of Okonkwo’s employees indicated that he was exclusively responsible for
printing refund checks. None of the taxpayers received the full amount of the
refund paid to them and all but one check had a forged endorsement, and several
refund checks were deposited into EFS’s bank account. One taxpayer indicated that
after she cashed her refund check, Okonkwo convinced her to return all but
$1000.00 of it, falsely telling her that she still owed taxes. All of the tax
returns—including returns of tax payers who dealt exclusively with
Okonkwo—were prepared in such a way as to maximize the earned income tax
credit and the resulting refund check by reporting non-existent income from CJB
Ice Cream (“CJB”), a company that Adewunmi, and not Okonkwo, was involved
with. Last, evidence supports the conclusion that Okonkwo attempted to conceal
his conduct—all the taxpayers were paid by Okonkwo and Adewunmi in cash, and,
when the IRS came to search the business location, the files for the eleven
fraudulent tax returns were not found.
AFFIRMED.
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