U.S. v. WITASICK, 443 Fed. Appx. 838 ( 4th Cir. 2011, cert denied, 2012)
Defendant appealed his conviction for violating 26 U.S.C.S. 7201, 7206(1), and 7203 and 18 U.S.C. 1347 and the 15-month sentence imposed by the United States District Court for the Western District of Virginia, at Danville, arguing that there was insufficient evidence and that the trial on the tax counts was infected by prosecutorial misconduct.
The government adduced ample evidence of defendant's guilt, and the jury properly concluded that he did not rely on the advice of his accountant. In fact, the evidence revealed that he directed his accountant to over-deduct his business expenses, despite being repeatedly informed by the accountant that only business expenditures were deductible. Thus, there was no basis in the record for defendant's claim that he relied in good faith on the advice of his tax preparer.
The same was true of defendant's claim with regard to his failure to file charge. Furthermore, the government adduced admissible evidence of a tax loss. As to the violation of 1347, the record belied defendant's assertion that there was no evidence that he directed that his groundskeeper be placed on the health care policy. The government adduced evidence that he made false representations to representatives from the insurer when questioned about the groundskeeper's employment status. Furthermore, 1347 contemplated criminal liability for the activities alleged. Contrary to his assertion, the prosecution was not required to present exculpatory evidence to the grand jury.
Defendant's conviction and sentence were affirmed.
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