United States v. Henry J. Uscinski

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________ FILED
U.S. COURT OF APPEALS
No. 03-11377 ELEVENTH CIRCUIT
_____________________________ May 12, 2004
THOMAS K. KAHN
D. C. Docket No. 02-00041-CR-1-MMP CLERK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

HENRY J. USCINSKI,

Defendant-Appellant.

_________________________________________

Appeal from the United States District Court
for the Northern District of Florida
_________________________________________

(May 12, 2004)

Before EDMONDSON, Chief Judge, DUBINA and COX, Circuit Judges.
PER CURIAM:

In 2002, Appellant Henry Uscinski pleaded guilty to violating 26 U.S.C. §

7201 by filing a false tax return for the 1996 tax year in which he knowingly

understated his taxable income by $1,551,863. At sentencing, the district court

enhanced Uscinski’s sentence for obstruction of justice and fined Uscinski

$250,000. Uscinski appeals the enhancement and the amount of the fine. We

affirm, except we vacate and remand on the amount of the fine.

BACKGROUND

In January 1996, Appellant Henry Uscinski began representing Claude

Louis DuBoc in extradition proceedings. The government had informed Uscinski

that all of DuBoc’s funds were drug-tainted and forfeitable to the United States.

In May 1996, DuBoc gave Uscinski authority to handle DuBoc’s financial affairs

with respect to DuBoc’s account in Austria. Between August and November

1996, Uscinski withdrew for his personal use approximately $1,500,000 from

DuBoc’s account. Uscinski then transferred those funds to various banks.

Uscinski did not report the funds as income on his 1996 federal income tax return.

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In 1997, the government began investigating the existence of DuBoc’s

previously unknown Austrian bank account. During that investigation, the

government learned of Uscinski’s control over the account and his transfers of

funds. The government also found a letter from another of DuBoc’s attorneys to

Uscinski with an article on countries having lax money laundering regulations.

Thereafter, the government asked Uscinski about the Austrian account.

Uscinski lied about the location of the money transferred and about the purpose of

the transfers -- stating that the money was used to support DuBoc’s family. Based

on that conversation, the government, with the help of foreign governments, traced

the money to determine if it had been used for DuBoc’s family -- it had not.

Instead, the government discovered that the money had been used for Uscinski’s

personal benefit.

Thereafter, the government charged Uscinski with tax evasion, and he

pleaded guilty to the offense. Uscinski’s Pre-Sentencing Investigation report

recommended a two-level increase for obstruction of justice and stated that

$250,000 was the statutory maximum fine. The district court sentenced Uscinski

to 42-month’s imprisonment and a $250,000 fine.

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DISCUSSION

Uscinski argues that the district court erred in imposing an enhancement for

obstruction of justice because (1) the district court did not enter specific findings

of fact; (2) Uscinski’s acts did not obstruct justice; and (3) imposition of the

enhancement amounts to impermissible double counting. When a district court

imposes an enhancement for obstruction of justice, this Court reviews the district

court’s factual findings for clear error and its application of the sentencing

guidelines to those facts de novo. 18 U.S.C. § 3742; United States v. Bradford,

277 F.3d 1311, 1315 (11th Cir. 2002).

Sentencing Guidelines § 3C1.1 provides for a two-level enhancement if “the

defendant willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice during the course of the investigation, prosecution, or

sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. And

application note 4(g) mandates the enhancement if a defendant made a material

false statement to a law enforcement officer and that statement significantly

obstructed or impeded the investigation. Id. comment. (n.4(g)).

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I. Findings of Fact.

Uscinski first argues that the district court erred in applying an obstruction

enhancement because the court failed to make adequate findings of fact. To

permit meaningful appellate review, a district court should make specific findings

of fact when applying § 3C1.1. United States v. Alpert, 28 F.3d 1104, 1107-08

(11th Cir. 1994) (en banc). For false statements, a district court “must find that the

statements were false and material” and “must also explain how the statements

significantly obstructed or impeded the investigation or prosecution of the

offense.” Id. But a remand is unnecessary if the record clearly reflects the basis

for enhancement. United States v. Taylor, 88 F.3d 938, 944 (11th Cir. 1996).

In this case, the record clearly reflects the basis for the district court’s

enhancement: the enhancement was based upon Uscinski’s statements that the

money had been transferred to support DuBoc’s family. Uscinski does not dispute

that his statements were false and material. Therefore, we need not remand for

additional findings.

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II. Obstruction of Justice.

Uscinki next argues that his false statements did not obstruct the

government’s investigation. Although a defendant’s denial of guilt will not

support an enhancement for obstruction, Uscinski’s statement was more than a

denial of guilt: Uscinski’s statements caused the government to take the

additional and unusual step of having foreign governments trace the $1,551,863 to

determine if the money went to DuBoc’s family. See United States v. Salemi, 26

F.3d 1084, 1088 (11th Cir. 1994) (concluding that defendant’s false statements

were not merely denials of guilt because they were made to impede and misdirect

the government’s investigation). Because Uscinski did not simply deny his guilt,

but instead concocted a false, exculpatory story that misled the government, the

district court did not err concluding that Uscinski significantly obstructed justice.

III. Double Counting.

Uscinski also argues that the district court erred in applying the

enhancement for obstruction because doing so amounted to impermissible double

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counting. Uscinski argues that double counting occurred because his false

statements were part of his offense of tax evasion.

This Court reviews de novo a claim of double counting. United States v.

Naves, 252 F.3d 1166, 1168 (11th Cir. 2001). Impermissible double counting

occurs “when one part of the Guidelines is applied to increase a defendant’s

punishment on account of a kind of harm that has already been fully accounted for

by application of another part of the Guidelines.” Id. “Double counting is

permitted if the Sentencing Commission intended the result, and if the result is

permissible because each section concerns conceptually separate notions related to

sentencing.” Id. (citation and quotations omitted). “Absent a specific direction to

the contrary, we presume that the Sentencing Commission intended to apply

separate guideline sections cumulatively.” Id.

The guideline calculation for tax evasion, U.S.S.G. § 2T1.1, does not take

into account Uscinski’s statements because those statements were not part of

Uscinski’s offense of tax evasion under 26 U.S.C. § 7201. Section 7201 states:

Any person who willfully attempts in any manner to evade or defeat any tax
imposed by this title or the payment thereof shall, in addition to other
penalties provided by law, be guilty of a felony and, upon conviction
thereof, shall be fined not more than $100,000 ($500,000 in the case of a
corporation), or imprisoned not more than 5 years, or both, together with the
costs of prosecution.

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26 U.S.C. § 7201. Under § 7201, false statements are sometimes part of the

offense of tax evasion. See United States v. Winfield, 960 F.2d 970, 973 (11th

Cir. 1992) (per curiam) (stating that under § 7201, for tax evasion involving

failure to file a return, a false statement made after the date the return was due is

an affirmative act of evasion). But, under § 7201, when tax evasion involves the

filing of a fraudulent tax return, the offense is complete upon filing. Sansone v.

United States, 85 S.Ct. 1004, 1011 (1965).* Because Uscinski’s tax evasion was

complete upon the filing of his tax return, his false statements to the government

were not a continuation of his crime.

Furthermore, Uscinski’s false statements involved a notion conceptually

separate from tax evasion. Uscinski made his statements in an effort to prevent the

government from discovering his tax evasion. This obstruction of justice is a harm

“separate and distinct” from the “obstruction of the collection of revenue.” United

States v. Sabino, 307 F.3d 446, 451 (6th Cir. 2002) (concluding that no

impermissible double counting occurred by imposing an enhancement for

obstruction of justice in a tax evasion case). Finally, the sentencing guidelines do

*
We read Winfield narrowly to prevent it from conflicting with Sansone. Winfield’s application
is limited to § 7201 evasions involving failure to file a tax return. Where a tax return has been filed,
Sansone applies; and the tax evasion is complete upon filing.

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not specifically prohibit, in tax evasion cases, an enhancement for obstruction of

justice based upon false statements to law enforcement.

Because Uscinski’s false statements were not part of his offense of tax

evasion, the enhancement for obstruction of justice does not amount to

impermissible double counting. Therefore, the district court did not err in

applying an enhancement under § 3C1.1.

CONCLUSION

The record shows that Uscinski’s false statements significantly obstructed

the government’s investigation of DuBoc’s Austrian account. And those false

statements were not a part of Uscinski’s offense of tax evasion. Because the

record supports a § 3C1.1 enhancement for obstruction and because that

enhancement does not amount to double counting, we affirm the district court’s 2-

level enhancement for obstruction of justice.

Uscinski also appeals the $250,000 fine, arguing that the district court erred

in imposing a fine in excess of the guideline range. The government agrees that

the district court erred in imposing a $250,000 fine. Therefore, we accept the

concession of error and vacate and remand for resentencing on this issue.

AFFIRMED IN PART; VACATED IN PART AND REMANDED.