Zitron: Affirming Tax return convictions

In U.S. v. Zitron, No. 14-10009 (Jan. 21, 2016), the Court affirmed convictions for filing false tax returns, use of an unauthorized access device, and aggravated identity theft. The Court rejected the argument that the counts charging identity theft, which involved stealing the identities of the defendant’s son and his ex-wife, should have been severed from the tax counts. The Court noted that the district court instructed the jury to treat the counts separately, and that evidence of one crime would have been admissible at a separate trial on the other crime. The Court rejected the argument that a government expert improperly commented on Zitron’s failure to testify when he said that absent an explanation from the defendant, the cash in his bank account would be treated as income. In context, the statement was not impermissible. Turning to the challenge of the sufficiency of the evidence on the aggravated identity theft, the Court noted that because defense counsel at trial did not make the “specific argument” in his Rule 29 motion that was being raised on appeal, the sufficiency issue would only be reviewed for “plain error.” The Court found no “plain error,” in light of testimony that Zitron did not have permission to use another’s identity. The Court rejected the argument that the calculation of the tax loss figure should only have included amounts deposited in Zitron’s bank accounts. All conduct violating the tax laws was the proper basis for the loss calculation. The Court also rejected Zitron’s challenge to his “organizer or leader” sentence enhancement, pointing out that both of the person Zitron directed knew that he was engaged in a scheme to hide the source of his income for tax purposes.