U.S. v. LITWOK, 678 F.3d 208, (2nd Cir. 2012)
Evelyn Litwok appealed from a judgment of conviction entered in the United States District Court for the Eastern District of New York after a jury found her guilty of one count of mail fraud and three counts of tax evasion for calendar years 1995 through 1997.
Defendant challenged the sufficiency of the evidence underlying all four convictions as well as the joinder of the mail fraud and tax evasion counts. The court held that there was sufficient evidence to sustain the mail fraud conviction and that defendant engaged in an affirmative act to evade taxes in 1995. However, as to the other two tax evasion counts, there was no evidence at trial of any affirmative act to evade taxes by defendant beyond a mere failure to file tax returns for calendar years 1996 and 1997.
The court ruled that there was a misjoinder under Fed. R. Crim. P. 8(a) of the mail fraud count and the tax evasion in 1995 count because there was no link, let alone a direct one, between the fraudulent insurance claim underlying the mail fraud count and the unreported income underlying the tax evasion count. The misjoinder prejudicially affected the jury's deliberations on each of the counts. The evidence as to both counts was not overwhelming, and the district court gave no limiting instructions.
With respect to the two counts of tax evasion for the years 1996 and 1997, the court reversed for insufficient evidence evidence. The court vacated the convictions on the remaining two counts of mail fraud and tax evasion for 1995 and remanded the case to the district court for further proceedings.