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United States v. Hunter

United States Court of Appeals, Eighth Circuit

July 10, 2017

United States of America Plaintiff- Appellee
v.
John Hunter, Sr. Defendant-Appellant

          Submitted: March 10, 2017

         Appeal from United States District Court for the District of Minnesota - St. Paul

          Before LOKEN, MURPHY, and BENTON, Circuit Judges.

          LOKEN, Circuit Judge.

         A jury convicted John Hunter, Sr. of one count of conspiracy to defraud the United States by filing false income tax returns in early 2010; nine counts of filing false claims for payment of tax refunds between February 2010 and January 2012; and two counts of aggravated identity theft in January 2012. The district court[1]denied Hunter's motions for a new trial or judgment of acquittal and sentenced him to 70 months in prison. Hunter appeals, arguing that the government failed to prove the single conspiracy charged in the Second Superseding Indictment, and that the district court abused its discretion in admitting certain evidence, improperly imposed sentencing enhancements, and erred in denying his motion for a new trial based on ineffective assistance of counsel. We affirm.

         I. The Conspiracy Issue.

         Hunter's primary contention on appeal is that the United States failed to prove a single overarching conspiracy because the evidence showed multiple, separate "rimless wheel conspiracies." When reviewing this claim, we view the evidence in the light most favorable to the jury's verdict. See United States v. Hamilton, 837 F.3d 859, 863 (8th Cir. 2016).

         At trial, the government introduced 48 fraudulent 2009 income tax returns claiming $231, 494 in refunds, Hunter's own return and the returns of 47 "filing co-conspirators" who were relatives of Hunter, people who lived with his relatives, and people who knew Hunter through church. The IRS paid refunds totaling $152, 182.

         The 47 fraudulent returns filed on behalf of others were electronically filed in early 2010 through a tax preparation website from IP addresses in Minnesota and northwestern Wisconsin. The returns accurately reported the individual's name, date of birth, social security number, and address. Many falsely reported wages between $13, 000 to $16, 000, income levels that supported claims for the maximum earned income tax credit. Some claimed tax withholding refunds, supported by fake W-2 forms from real employers. Others reported false refundable education credits and fictitious withholding from gambling winnings. IRS agents contacted employers listed on the returns and determined fictitious employment and wages were reported.

         To receive tax refunds, Hunter or a tax-preparer associate would take out a prepaid debit card in the filing taxpayer's name, using that individual's correct social security number and date of birth, and entering the debit card's bank routing and account number on the tax return. IRS refunds were deposited in those accounts. Hunter would share a portion of the fraud proceeds with the filer.

         IRS agents subpoenaed wireless providers associated with the IP addresses from which the returns were filed. The majority were filed from IP addresses traced to Hunter's home addresses. Seven others were filed between January 20 and January 25, 2010 from an address traced to the Country Inn and Suites in Cottage Grove, Minnesota, where Hunter had rented a room a few days before.

         Two IRS agents questioned Hunter at his home in a January 2013 consensual interview. Hunter admitted that he participated in filing false returns. He said that others from Atlanta and Miami had filed the returns from a hotel or using the Wi-fi network in his home. Though expressing a desire to cooperate, Hunter refused to provide their names, saying "I got myself into this." When alerted that he could be charged with identity theft, Hunter inquired how that would be possible when friends had given him their identifying information for the purpose of filing false returns.

         Four alleged filing co-conspirators testified for the government at trial. Tekoah Whitsett, who attended school with Hunter's daughter, testified that Hunter prepared her 2009 income tax return for a fee. The return falsified wages and employment information. The IRS paid a $6, 774 refund, and Hunter paid Whitsett $1, 500 in cash. When Whitsett asked for a copy of her tax return, Hunter told her that someone else possessed it, "that he had been doing this for years and that he had worked with someone out in Woodbury." Maricus Roseman testified that Hunter offered to file his 2009 tax return. Roseman agreed and provided his personal identification information. The return fraudulently obtained a $3, 319 refund. Roseman testified that Hunter only gave him a few hundred dollars, and explained that he was keeping the remainder of the refund to split with a few more people.

         Noting that alleged conspirators testified at trial that they did not know each other, Hunter argues the government's evidence "at best" established multiple conspiracies, rather than the single conspiracy charged in the indictment -- a rimless wheel conspiracy in which multiple unconnected "spokes" dealt independently with the same "hub" conspirator, Hunter. See Kotteakos v. United States, 328 U.S. 750, 754-55 (1946). He asserts, without explanation, that he was "prejudiced by the variance between the indictment and the proof." Whether the government's proof established a single or multiple conspiracies is a question of fact; we reverse only if "no reasonable jury could have found the single conspiracy charged in the indictment . . . [and] this variance in the government's proof has prejudiced [the] defendant's substantial rights." Hamilton, 837 F.3d at 863 (quotation omitted). "A single ...


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