PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-1420
_____________
UNITED STATES OF AMERICA
v.
DONALD TURNER, a/k/a Don L. Wood
Donald Turner,
Appellant.
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 1-01-cr-00006-003)
District Judge: Honorable Maurice B. Cohill
Argued January 8, 2013
Before: RENDELL, FISHER and JORDAN, Circuit
Judges
(Opinion Filed: May 01, 2013)
1
Lisa B. Freeland, Esq.
Elisa A. Long, Esq. [ARGUED]
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Thomas W. Patton, Esq.
Office of Federal Public Defender
1001 State Street
1111Renaissance Centre
Erie, PA 16501
Counsel for Appellant
Katie Bagley, Esq.
Frank P. Cihlar, Esq.
Gregory V. Davis, Esq. [ARGUED]
United States Department of Justice
Tax Division
950 Box 502
Washington, DC 20044
Rebecca R. Haywood, Esq.
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
2
_____________
OPINION OF THE COURT
_____________
RENDELL, Circuit Judge.
Donald Turner, a.k.a. Don Wood, was convicted by a
jury of one count of conspiracy to defraud the United
States in violation of 18 U.S.C. § 371. The District Court
sentenced Turner to 60 months‟ imprisonment and three
years of supervised release. In addition, it ordered Turner
to pay $408,043 in restitution to the Government under 18
U.S.C. § 3663. Turner appeals his conviction and
sentence. He asserts that the District Court erred in
admitting (1) recorded conversations between his co-
conspirator and an undercover Internal Revenue Service
(“IRS”) agent and (2) foreign bank documents that the IRS
seized from his co-conspirator‟s residence and office.
Turner also argues that the District Court erred in requiring
him to pay $408,043 in restitution because it did not make
findings regarding his ability to pay. For the reasons
discussed below, we will affirm.
I.
A. Factual Background
Turner is the author of Tax Free! How the Super Rich
Do It!—a book that instructed readers how to “escape
federal and state income taxation” through the use of
common law trust organizations (“colatos”). (App. 384.)
3
He is also the former director of First American Research
(“FAR”), a membership organization that he created to
assist members in implementing the colato program
described in his book.
In 1991, Turner enlisted Daniel Leveto, the owner of
a veterinary clinic, as a new FAR member, and Turner then
assisted Leveto in implementing the colato program. FAR
created Center Company, a foreign colato, and appointed
Leveto as the general manager and Turner as a consultant.
Leveto then “sold” his clinic to Center Company, which in
turn “hired” Leveto as the clinic‟s manager.
After the sale, Leveto continued to control and
operate the clinic just as he did when he was the owner.
But because the clinic was no longer in his name, Leveto
stopped reporting the clinic‟s income on his individual tax
returns, and consequently paid no taxes on the clinic.
Center Company, which was now responsible for reporting
the clinic‟s income, also did not pay the clinic‟s taxes
because it distributed the clinic‟s income to other foreign
colatos, which according to Turner, “transformed” it to
untaxable foreign source income. Thus, no one paid the
clinic‟s taxes.
Although the clinic‟s taxes went unpaid, Leveto had
full access to the clinic‟s income through various sources,
including foreign and domestic bank accounts, nominee
foreign and domestic bank accounts, commodity accounts,
loans from the colatos, and debit and credit cards opened
under the colatos‟ names.
4
In 1993, Leveto and Turner executed a written
agreement for Leveto to market and sell Tax Free!. Leveto
purchased each book from Turner for $637.50 and agreed
to sell the books for at least $1,275 each. In 1995, the IRS
began a criminal investigation into Leveto to determine
whether Leveto‟s sale of his veterinary clinic was
legitimate, and whether the colato program was valid. As
part of the investigation, Manuel Gonzalez, an undercover
IRS agent, purchased Tax Free! from Leveto. After
Gonzalez purchased the book, he and Leveto spoke about
the program several times both in person and on the phone.
Leveto informed Gonzalez about the benefits of the colato
program and encouraged him to attend a FAR membership
meeting to better understand how the program worked.
Several of these conversations were recorded and
introduced as evidence at Turner‟s trial.
In addition, Leveto submitted Gonzalez‟s name to
Turner as a qualified FAR member, who, in response, sent
Gonzalez a letter explaining the benefits of FAR and
enclosing a membership application. Turner also spoke
with Gonzalez on the phone about the colato program and
FAR membership.
The investigation into Leveto‟s dealings with Turner
also involved the search of Leveto‟s residence and office.
IRS agents seized a large volume of documents and
records from both locations, including from safes inside
Leveto‟s office. The documents included Leveto‟s foreign
and domestic bank records, his handwritten notes that
referenced FAR, colatos, and Tax Free!, correspondence
with Turner, evidence relating to Leveto‟s nominee
accounts, and correspondence with banks, including wire
5
transfer requests. Many of these documents were
introduced at Turner‟s trial.
B. Procedural History
In 2001, a federal grand jury charged Turner, Leveto,
and Leveto‟s wife, Margaret Leveto, with conspiracy to
defraud the IRS by concealing the Levetos‟ assets, and
thus, preventing the IRS from computing and collecting the
Levetos‟ federal income taxes in violation of 18 U.S.C.
§ 371. Before trial, Turner filed a motion in limine to
exclude several pieces of evidence, including (1) the
recorded conversations between Leveto and Gonzalez, and
(2) the foreign bank records that the IRS seized from
Leveto‟s office and residence. Turner argued that both
were inadmissible hearsay and that the Government failed
to properly authenticate the foreign bank documents. The
District Court disagreed and held them to be admissible.
The District Court admitted the recorded
conversations under Federal Rule of Evidence
801(d)(2)(E), which states that a statement is not hearsay if
it is offered against an opposing party and “was made by
the party‟s coconspirator during and in furtherance of the
conspiracy.” It concluded that there was an unindicted
conspiracy between Leveto and Turner to impede or impair
the IRS‟s tax collection efforts by recruiting members to
FAR, which worked with members in concealing their
income from the IRS, and that Leveto‟s statements to
Gonzalez furthered that conspiracy.1 The District Court
1
We note for context that in its response to Turner‟s
motion in limine, the Government argued that the recorded
6
held that the Government properly authenticated the
foreign bank documents and admitted documents bearing
Leveto‟s signature or handwriting under Federal Rule of
Evidence 801(d)(2)(E). It admitted the rest of the
contested documents under the residual hearsay exception.
The jury convicted Turner of conspiracy. The
District Court sentenced Turner to 60 months‟
imprisonment and three years of supervised release. In
addition, applying 18 U.S.C. § 3663, the District Court
ordered Turner to pay $408,043 in restitution, the full
amount of the Government‟s loss, without considering
Turner‟s ability to pay.
Turner now appeals. He contends that the District
Court erred in admitting the recorded conversations under
Rule 801(d)(2)(E) because there was no evidence of a
conspiracy to recruit members to FAR. In addition, he
contends that the District Court erred in admitting the
foreign bank documents because (1) the Government did
not properly authenticate the documents and (2) the
documents admitted under the residual hearsay exception
did not have sufficient guarantees of trustworthiness to
conversations were admissible under Rule 801(d)(2)(E)
and that there were two conspiracies that the statements
were made in furtherance of: (1) the indicted conspiracy to
conceal the Leveto‟s income from the IRS; and (2) the
unindicted conspiracy to recruit members to FAR. In
admitting the recorded conversations, the District Court
did not discuss the Government‟s contention that the
recorded conversations were in furtherance of the indicted
conspiracy. Neither party challenges this on appeal.
7
satisfy Rule 807(a)(1). Finally, he asserts that the District
Court erred in imposing restitution without making specific
findings regarding his ability to pay.
II.
The District Court had jurisdiction under 18 U.S.C.
§ 3231. This Court has jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742.
III.
A. The Conversations between Leveto and Gonzalez
Turner contends that the District Court erred in
admitting the conversations between Leveto and the
undercover IRS agent, Manuel Gonzalez, under Federal
Rule of Evidence 801(d)(2)(E) because the Government
failed to prove that a conspiracy existed between Turner
and Leveto to recruit members to FAR.
Federal Rule of Evidence 801(d)(2)(E) provides that
a statement by a “party‟s coconspirator during and in
furtherance of the conspiracy” is not hearsay if it is offered
against that party. For an out-of-court statement to be
admissible under this Rule, the Government must prove by
a preponderance of the evidence that: (1) a conspiracy
existed; (2) the declarant and the party against whom the
statement is offered were members of the conspiracy; (3)
the statement was made in the course of the conspiracy;
and (4) the statement was made in furtherance of the
conspiracy. United States v. Ellis, 156 F.3d 493, 496 (3d
Cir. 1998). To prove these elements, the Government may
8
rely on the co-conspirator‟s statements themselves, if they
are corroborated by independent evidence. Bourjaily v.
United States, 483 U.S. 171, 181 (1987); United States v.
Gambino, 926 F.2d 1355, 1361 (3d Cir. 1991); see also
Fed. R. Evid. 801(d)(2). Statements are admissible under
this Rule “even if the basis for admission is a conspiracy
different from the one charged.” Ellis, 156 F.3d at 497.
When a district court concludes that a conspiracy
existed, we review the district court‟s findings as to the
elements outlined above for clear error. Ellis, 156 F.3d at
496 (citing United States v. Cruz, 910 F.2d 1072, 1081
n.11 (3d Cir. 1990)). “Clear error exists when giving all
due deference to the opportunity of the trial judge to
evaluate the credibility of witnesses and to weigh the
evidence, we are left with a definite and firm conviction
that [a] mistake has been committed.” Commerce Nat’l.
Ins. Servs., Inc. v. Commerce Ins. Agency, Inc., 214 F.3d
432, 435 n.1 (3d Cir. 2000).
Having reviewed the record, we conclude that the
District Court did not clearly err in determining that a
conspiracy existed to impair the IRS‟s tax collection
efforts by recruiting members to FAR, which assisted
members in implementing Turner‟s fraudulent tax
avoidance program. The following independent evidence
supports the District Court‟s decision. First, there was a
written agreement between Turner and Leveto to sell Tax
Free!, and Tax Free! directed readers to contact FAR.
This directive is not surprising since Turner benefited
substantially if his readers joined his organization. The
membership fee in 1990 was $10,000. As recruiting FAR
members was an obvious purpose of the book, and a
9
benefit to Turner, it is a reasonable inference that Turner
and Leveto would have also agreed that Leveto—a FAR
member himself and the person interacting with Turner‟s
potential clients—would encourage interested customers to
join FAR.
Second, Leveto met with Gonzalez several times
after he sold Gonzalez the book. One of the meetings
occurred when Gonzalez appeared late and unannounced at
Leveto‟s house. Although Leveto and his family were
preparing for bed, Leveto met with Gonzalez for almost an
hour in Gonzalez‟s car. It is reasonable to infer that
Leveto, who had never met Gonzalez before he sold him
Tax Free!, continued meeting with Gonzalez after he sold
Gonzalez the book to recruit him to Turner‟s FAR.
Third, Gonzalez received a letter from Turner stating
that Leveto had submitted Gonzalez‟s name as a “qualified
candidate” for FAR membership and enclosing a
membership application. This supports a finding that
Leveto was screening and recommending potential
members to Turner.
Finally, Leveto‟s own statements provide ample
evidence of a conspiracy. For example, Leveto repeatedly
insisted that Gonzalez attend a membership meeting with
Turner to fully understand the program. He assured
Gonzalez that Turner would do phone consultations and
provided Gonzalez with Turner‟s telephone and fax
numbers. He informed Gonzalez that when two of his
friends joined FAR that he, his friends, and Turner met to
discuss how best to implement the program for his friends.
And he informed Gonzalez that when Gonzalez contacted
10
him, he alerted Turner. Each of these statements suggests
that Leveto was not simply selling books but was actively
recruiting members to FAR.
Based on this evidence, we do not find the District
Court‟s determination that a conspiracy existed to be
clearly erroneous. We will therefore not disturb the
District Court‟s ruling that the recorded conversations were
admissible.
B. The Foreign Bank Documents
1. Authentication
Turner contends that the District Court erred in
admitting Leveto‟s foreign bank documents because the
Government cannot prove their authenticity. We review a
district court‟s ruling that evidence was properly
authenticated for abuse of discretion. United States v.
McGlory, 968 F.2d 309, 328 (3d Cir. 1992).
Federal Rule of Evidence 901(a) requires the
authentication of evidence before a district court may
admit it. The standard for authenticating evidence is
“slight,” McQueeney v. Wilmington Trust Co., 779 F.2d
916, 928 (3d Cir. 1985), and may be satisfied by “evidence
sufficient to support a finding that the item is what the
proponent claims it is.” Fed. R. Evid. 901(a). This Court
does not require conclusive proof of a document‟s
authenticity, but merely a prima facie showing of some
competent evidence to support authentication.
McQueeney, 779 F.2d at 928; United States v. Goichman,
547 F.2d 778, 784 (3d Cir. 1976) (per curiam). “Once a
11
prima facie case is made, the evidence goes to the jury and
it is the jury who will ultimately determine the authenticity
of the evidence, not the court.” Goichman, 547 F.2d at
784.
Federal Rule of Evidence 901(b) provides examples
of appropriate methods of authentication, including
reliance on “[t]he appearance, contents, substance, internal
patterns, or other distinctive characteristics of the item.”
Fed. R. Evid. 901(b)(4). This list is not exhaustive,
however, and it is clear that the Government may
authenticate documents with other types of circumstantial
evidence, including the circumstances surrounding the
documents‟ discovery. See McGlory, 968 F.2d at 329
(considering that notes were found in trash outside of
defendant‟s residence as evidence of authenticity);
McQueeney, 779 F.2d at 929 (considering that documents
were produced in response to a discovery request as
evidence of authenticity) (citing Burgess v. Premier Corp.,
727 F.2d 826, 835-36 (9th Cir. 1984) (holding that exhibits
found in defendant‟s warehouse were adequately
authenticated simply by their being found there)). We
have also considered whether the information included in
the evidence is widely known. See McQueeney, 779 F.2d
at 929-30 (concluding that small number of people who
knew the information in the evidence supported finding of
authenticity).
The Government easily met its slight burden here.
First, the appearance of the documents support their
authentication: the documents have the official appearance
of bank records. They bear the insignia of foreign banks,
see, e.g., A. 1735, A. 1784, and contain the type of
12
transaction data typically present on bank records, see, e.g.,
A. 1727, A. 1785. The documents are also internally
consistent in their appearance. Compare A. 1689 with A.
1693.
Second, the contents of the documents provide
evidence of their authenticity. The documents were
addressed to Leveto‟s home and business addresses and
post office box. See, e.g., A. 1718, A. 1722. Several of
the documents were responsive to faxes that Leveto sent.
And the Government reconciled many of the foreign bank
documents with domestic bank records—the authenticity
of which Turner does not challenge. Moreover, the bank
records included information that was not widely-known,
including Leveto‟s personal account information and
aliases.
Third, the IRS seized the records from Leveto‟s home
and office and safes inside Leveto‟s office, which strongly
supports a finding of authenticity because it is likely that
Leveto would have stored his bank records there, and his
possession of the documents indicates his belief that they
were important.
Finally, although we agree with Turner that it is the
Government‟s burden to prove authentication, Turner has
not suggested any reason why the Court should doubt the
authenticity of the documents. This only bolsters our
conclusion that the District Court did not abuse its
discretion in concluding that the documents were properly
authenticated. As such, we will affirm the District Court‟s
holding that the documents were properly authenticated.
13
2. Admissibility
Turner argues that the District Court erred in
admitting the foreign bank documents under Federal Rule
of Evidence 807 because the Government did not prove
that the documents had exceptional guarantees of
trustworthiness.2 We review for clear error a district
court‟s finding that evidence was sufficiently trustworthy
to be admissible under Rule 807. United States v. Wright,
363 F.3d 237, 246 (3d Cir. 2004).
The residual hearsay exception permits a district
court to admit an out-of-court statement not covered by
Rules 803 or 804 if the court determines that:
(1) the statement has equivalent
circumstantial guarantees of
trustworthiness; (2) it is offered as
evidence of a material fact; (3) it
is more probative on the point for
which it is offered than any other
evidence that the proponent can
obtain through reasonable efforts;
and (4) admitting it will best serve
the purposes of these rules and the
interests of justice.
Fed. R. Evid. 807. The exception is “„to be used only
rarely, and in exceptional circumstances‟ and „appl[ies]
2
Turner concedes that the foreign bank documents satisfy
Fed. R. Evid. 807(a)(2)-(4).
14
only when certain exceptional guarantees of
trustworthiness exist and when high degrees of
probativeness and necessity are present.‟” Wright, 363
F.3d at 245 (quoting United States v. Bailey, 581 F.2d 341,
347 (3d Cir. 1978)). The determination of whether a
document is sufficiently trustworthy to be admitted under
Rule 807 is a highly fact-specific inquiry. Id. at 246. In
making this determination, the district court may not rely
exclusively on corroborating evidence. See Bailey, 581
F.2d at 349.
In United States v. Pelullo, we analyzed whether
bank records should be admissible under the residual
earsay exception and noted that in general, bank records
“provide circumstantial guarantees of trustworthiness
because the banks and their customers rely on their
accuracy in the course of their business.” 964 F.2d 193,
202 (3d Cir. 1992).3 Other courts of appeals have similarly
concluded. See United States v. Wilson, 249 F.3d 366, 376
(5th Cir. 2001) (admitting foreign bank records under the
residual hearsay exception), abrogated on other grounds
by Whitfield v. United States, 543 U.S. 209 (2005); United
States v. Nivica, 887 F.2d 1110, 1127 (1st Cir. 1989)
(same); Karme v. Comm’r, 673 F.2d 1062, 1064-65 (9th
Cir. 1982) (same).
3
We ultimately excluded the evidence, however, because
unlike here, the Government did not notify the defendant that
it was introducing the evidence under the residual exception,
and the district court did not make explicit findings as to the
trustworthiness of the documents. Id. at 204.
15
The District Court concluded that the same evidence
that supported the foreign bank documents‟ authenticity
was also sufficient to support the documents‟
trustworthiness, and therefore, admissibility under Rule
807. Turner contends that this was error for three reasons.
First, relying on Bohler-Uddeholm America, Inc. v.
Ellwood Group, Inc., 247 F.3d 79 (3d Cir. 2001), Turner
asserts that it is “impossible” to admit the records under
Rule 807 because the declarants of the bank documents are
unknown. Second, Turner argues that Karme and Wilson
are distinguishable because in those cases, the sources of
the documents were banks—in contrast to here, where the
IRS seized the documents from Leveto‟s residence and
business. Third, Turner maintains that the District Court
improperly relied only on corroborating evidence in
admitting the documents.
We find that Turner‟s arguments lack merit and that
the District Court did not clearly err in concluding that the
documents possessed sufficient indicia of trustworthiness.
First, contrary to Turner‟s assertion, the Government is not
required to identify the declarant of the foreign bank
documents in order for the documents to be admissible
under Rule 807. See Wilson, 249 F.3d at 375-76
(admitting bank records under the residual hearsay
exception with no mention of declarant); Nivica, 887 F.2d
at 1127 (same); Karme, 673 F.2d at 1064-65 (same); see
also Fed. R. Evid. 807. Bohler-Uddeholm does not suggest
otherwise. In Bohler-Uddeholm, this Court affirmed the
district court‟s ruling admitting the affidavit of a person
who died before trial under Rule 807. We explained that
the factors that the district court analyzed in admitting the
affidavit, including whether the declarant was known and
16
whether the statements were based on personal
observation, were sufficient for this Court to uphold the
district court‟s order. Bohler-Uddeholm, 247 F.3d at 113.
We did not hold, however, that these factors were
necessary for hearsay evidence to be admissible under
Rule 807, and we decline to require those factors here
where many of the documents were computer-generated.
Second, as discussed supra, that the IRS seized the
documents from Leveto‟s residence, office, and safes
within his office, weighs in favor of the reliability of the
documents—not against it. Turner does not dispute that
the IRS seized the documents from Leveto. He does not
identify any break in the chain of custody of the
documents. And he does not suggest any reasons why
Leveto would have been storing false bank documents that
implicated him in tax fraud.
Third, the District Court did not improperly rely only
on corroborating evidence in admitting the bank records.
As detailed above, the District Court relied on: (1) the
appearance of the records, including their internal
consistency; (2) the contents of the records; and (3) the
circumstances surrounding the discovery of the records.
Those grounds are entirely legitimate.
Finally, it bears repeating that Turner has not
identified any document that he claims is a forgery or in
any way inaccurate. Accordingly, we will not disturb the
ruling of the District Court.
17
C. Restitution
Turner argues that the District Court erred in
imposing restitution under 18 U.S.C. § 3663 because it
required him to pay the full amount of the Government‟s
losses without making specific findings regarding his
ability to pay. For the first time on appeal, the
Government urges, however, that 18 U.S.C. § 3663A, the
Mandatory Victims Restitution Act (“MVRA”), applies.
Under the MVRA, a sentencing court is required to order a
defendant to pay the full amount of a victim‟s losses
without considering the defendant‟s economic
circumstances. Id. § 3664(f)(1)(A). Thus, under the
MVRA, the Government contends that the District Court‟s
restitution award was proper. We review the legality of a
restitution order de novo and review specific awards for
abuse of discretion. United States v. Graham, 72 F.3d 352,
355 (3d Cir. 1995).
As an initial matter, we will address Turner‟s
contention that the Government waived the argument that
the MVRA applied by not urging it before the District
Court. While it is a general rule that arguments raised for
the first time on appeal are waived, the waiver principle “is
only a rule of practice and may be relaxed whenever the
public interest or justice so warrants.” Tri-M Group, LLC
v. Sharp, 638 F.3d 406, 416 (3d Cir. 2011) (internal
citations omitted). Indeed, we have been reluctant to apply
the waiver doctrine if the issue raised is solely one of law
and no additional fact-finding is necessary. Id. at 417-18.
Here, whether the MVRA applies is a pure question of law.
Neither party disputes the District Court‟s factual findings
or suggests that further development of the record would
18
assist the resolution of this matter. Moreover, we have not
previously addressed whether the MVRA applies to 18
U.S.C. § 371 offenses, and therefore, we find it particularly
appropriate to reach the issue.
The MVRA provides for mandatory restitution to the
victims of certain identified offenses, including offenses
“against property under this title, or under section 416(a)
of the Controlled Substances Act (21 U.S.C. 856(a)),
including any offense committed by fraud or deceit.” 18
U.S.C. § 3663A(c)(1). MVRA does not define “offenses
against property.” We have held that this term includes
offenses involving money. See United States v. Diaz, 245
F.3d 294, 312 (3d Cir. 2001) (imposing restitution under
the MVRA for money laundering offense).
The MVRA defines “victim” as “a person directly
and proximately harmed as a result of the commission of
an offense for which restitution may be ordered including,
in the case of an offense that involves as an element a
scheme, conspiracy, or pattern of criminal activity, any
person directly harmed by the defendant‟s criminal
conduct in the course of the scheme, conspiracy, or
pattern.” 18 U.S.C. § 3663A(a)(2). The MVRA‟s
enforcement provision expressly identifies the government
as an eligible victim by providing: “[i]n any case in which
the United States is a victim, the court shall ensure that all
other victims receive full restitution before the United
States receives any restitution.” Id. § 3664(i); see also
Diaz, 245 F.3d at 312 (finding that United States
Department of Education is a victim under MVRA).
District courts ordering restitution under the MVRA must
“order restitution to each victim in the full amount of each
19
victim‟s losses as determined by the court and without
consideration of the economic circumstances of the
defendant.” 18 U.S.C. § 3664(f)(1)(A).
Turner asserts that he did not commit an “offense
against property” in conspiring to defraud the IRS of
Leveto‟s tax dollars, arguing that Leveto‟s unpaid taxes are
not the IRS‟s property because the IRS never possessed the
money. Contrary to Turner‟s assertion, his success in
keeping Leveto‟s tax dollars out of the hands of the IRS
does not make the taxes Leveto owes to the IRS any less
the IRS‟s property. Depriving a person of something that
lawfully belongs to him does not render whatever is owed
not his property. Certainly, obligations owed to
someone—for instance, their accounts receivable—are
“assets” and therefore property. See Pasquantino v. United
States, 544 U.S. 349, 355-356 (2005) (stating that the right
to collect previously uncollected excise taxes is “„property‟
in [a Government‟s] hands”, and that “[t]his right is an
entitlement to collect money . . . , the possession of which
is „something of value‟ to the Government. . . .”). As such,
we conclude that Turner‟s conspiracy to defraud the IRS of
its property, Leveto‟s tax dollars, in violation of 18 U.S.C.
§ 371, is an “offense against property under this title [title
18],” and consequently covered by the MVRA. Our
conclusion is consistent with the position of other courts
that have decided this issue. See United States v. Meredith,
685 F.3d 814, 827 (9th Cir. 2012) (applying MVRA to
conspiracy to defraud the IRS in violation of 18 U.S.C.
§ 371); United States v. Campbell, No. 1:07-cr-239-5,
2009 WL 4885231, at *4 (W.D. Mich. Dec. 15, 2009)
(same).
20
Applying the MVRA, we find that the District Court
did not err in ordering Turner to pay $408,043 in
restitution to the Government. As noted, the MVRA
prohibited the District Court from considering Turner‟s
economic circumstances in ordering restitution. Moreover,
the parties do not contend that the MVRA provides a
different method for calculating the Government‟s tax loss
than § 3663, and Turner does not contest that the District
Court‟s award accurately reflects the Government‟s loss.
As a result, we will affirm the District Court‟s $408,043
restitution order.
VI.
For the reasons discussed above, we will affirm the
District Court‟s judgment of conviction. In addition, we
will affirm the District Court‟s order of restitution in the
amount of $408,043.
21