U. S. v. AGUIRRE, 368 Fed. Appx. 979, LEXIS 5876 (11th Cir. 2010)
Defendant appealed his convictions and sentences for tax evasion, in violation of 26 U.S.C. Section 7201 raising various arguments related to the United States District Court for the Southern District of Georgia's denial of his motion to suppress, its evidentiary rulings, and his sentencing.
When an IRS agent executed her warrant affidavit, her lengthy investigation of a tax preparation service had not put her on notice that the address also housed an office and documents related only to defendant's car repair business. Defendant's office was unlocked and lacked markings related to the car business. The warrant and affidavit authorized a search of that office because defendant was believed to be employed by the tax preparation service. Evidence that the alleged owner of the tax business falsified tax returns for others was not evidence of habit under Fed. R. Evid. 406.
It was impermissible character evidence under 404 because defendant sought to show that the alleged owner acted dishonestly by failing to file defendant's tax returns. But, it was clear error to fail to make findings in support of the determination of the car business's tax liability instead of simply relying on the pre-sentence report with no explanation as to how the amount was determined. Defendant's VA fraud was relevant conduct under, since his failure to report employment income, as charged, enabled his receipt of VA benefits.
Defendant's convictions were affirmed. His sentence was vacated and the case was remanded for a recalculation of the loss amount to be used in re-sentencing.
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