U. S. v. DAMRA, LEXIS 19225 (6th Cir. 2010)
Defendant was convicted of evading corporate income tax in violation of 26 U.S.C. Section 7201 and of, together with his brother, conspiring to defraud the United States in violation of 18 U.S.C. Section 371. He appealed his conviction and sentence from the United States District Court for the Northern District of Ohio.
The brother was deported before trial, but defendant was never promised otherwise and there was no bad faith.
Defendant knew he was charged with "causing" the brother to file a false return and had ample opportunity to depose him on that. The right to compulsory process was not violated. An IRS agent testified that despite the brother providing no services, defendant admitted to paying him and deducting it as a consulting fee, and that such classification was admitted as abuse. Focusing on whether there was evidence he told his brother how to file the brother's return was misplaced: a conspiracy could be inferred from defendant's actions. While it was error to have assigned the agent, the lead investigator, as an interpreter for a prosecution witness, the witness credibly maintained his testimony before and after the interpreting. Since "willful" was defined in part as "voluntary" the 371 "knowing and voluntary" instruction did not improperly omit the willfulness element. Since that instruction was adequate, a good faith instruction was unnecessary. But, it was a procedural error to not subtract defendant's personal tax loss to lower the offense level; resentencing was required. The conviction was affirmed, but the district court incorrectly sentenced defendant at a higher offense level.
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