Professional Documents
Culture Documents
No. 10-4593
Appeal from the United States District Court for the Western
District of Virginia, at Danville.
Jackson L. Kiser, Senior
District Judge. (4:07-cr-00030-jlk)
Submitted:
Decided:
PER CURIAM:
Kevin
fifteen-month
John
Witasick
sentence
for
appeals
two
his
counts
of
conviction
tax
evasion
and
in
He
argues
that
insufficient
evidence
supported
his
convictions and that the trial on the tax counts was infected by
prosecutorial misconduct.
We affirm.
attorney
in
the
Arizona
firm
of
Witasick,
Parker,
and
property
in
Stanleytown,
Virginia.
While
Witasick
he
spent
remodeling
and
renovating
Stoneleigh
were
$100,000.
At
Stoneleighs
the
same
time,
groundskeeper
Witasick
(and
falsely
Witasicks
claimed
personal
that
trainer)
I.
Witasick
first
argues
that
insufficient
evidence
of
the
evidence
faces
heavy
burden.
United
We review
elements
United
States v.
of
the
crime
Collins,
beyond
412
reasonable
F.3d
515,
doubt.
519
Castle in the
gave when he
v.
Harvey,
532
F.3d
326,
333
United
In
Foster, 507
F.3d at 244-45.
In order to establish a violation of 26 U.S.C. 7201
(2006), the Government must prove that Witasick acted willfully
and committed an affirmative act that constituted an attempted
evasion of tax payments and, as a result, a substantial tax
deficiency existed.
(4th Cir. 1997).
filing false tax returns and failing to file tax returns, the
Government
must
willful.
See
similarly
United
(filing
prove
States
false
that
v.
tax
Witasicks
Aramony,
88
returns);
actions
F.3d
United
1369,
were
1382
States
v.
Ostendorff, 371 F.2d 729, 730 (4th Cir. 1967) (failing to file
tax returns).
4
Willfulness,
in
this
context,
means
498
U.S.
192,
201
(1991)(quoting
voluntary,
Cheek v. United
United
States
v.
that one has complied with the tax laws negates willfulness and
is therefore a defense, even if the belief is unreasonable.
See
id. at 201-02.
that
did
Witasick
not
have
subjective
belief,
however
faith
reliance
on
qualified
accountant
has
United
States
The
v.
good
Bishop,
faith
291
reliance
F.3d
1100,
defense
is
1107
not
upon
whose
advice
the
defendant
claims
reliance.
See, e.g., Bishop, 291 F.3d at 1107; United States v. Masat, 948
F.2d
923,
930
This
is
so
because
if
also
United
States
v.
DeClue,
899
F.2d
1465,
1472
that
the
Government
adduced
ample
evidence
of
expenses,
accountant
that
despite
only
being
business
repeatedly
expenditures
informed
were
by
the
deductable.
was not told by his attorney not to file a tax return until more
than a year after the return was due, at which time the offense
was complete.
Witasick argues in the alternative that the Government
did not adduce admissible evidence of a tax loss.
agree.
We do not
deficiency,
the
Government
6
must
prove
first
To show a
that
the
taxpayer had unreported income, and second, that the income was
taxable.
United
States
The
v.
Abodeely,
Government
need
801
not
F.2d
prove
1020,
the
1023
precise
To prove a violation of 26
defendant
made
and
subscribed
to
tax
return
(4)
the
defendant
acted
willfully.
United
States
v.
gravamen
of
Witasicks
witness,
the
exceeded
the
scope
expert.
testimony
Jacqueline
that
summary
summary
agent
is
Governments
of
IRS
objection
and
English,
testified
as
an
Thus, the
tax deficiency.
tax-related charges.
II.
he
personally
acted
to
place
Ca-stle
on
his
firms
health
insurance policy, that he and the law firm were one and the
same, and that this type of case falls outside the scope of 18
U.S.C. 1347.
To
prove
health
care
fraud,
the
Government
had
to
United States v.
Girod,
2675925,
Nos.
10-30128,
10-30339,
2011
WL
to
defraud,
acted
with
the
the
Government
specific
intent
had
to
to
show
defraud,
at
*5
To prove a
that
Witasick
which
may
be
In
includes
acts
taken
to
conceal,
create
false
United States v.
Ample
in
concert
with
his
law
partners,
made
adduced
representations
evidence
to
that
representatives
the
decision
Furthermore, the
Witasick
from
Anthem,
made
the
false
insurer,
to
Thus, we
than
with
Witasick
&
Associates,
the
sole
could
be
considered
his
firms
employee
is
without
merit.
Finally, we turn to Witasicks argument that 1347,
the
statute
under
which
Witasick
was
prosecuted,
does
not
We
United
States
v.
Carr,
interpreting
592
the
F.3d
scope
636,
of
639
n.4
statute,
we
look
first
to
In
the
Tenn. Valley Auth., 515 F.3d 344, 351 (4th Cir. 2008).
Here,
the
language
of
the
statute
provides
that
or
attempts
to
for
of
ambiguous.
the
accused,
we
conclude
that
the
statute
is
not
10
III.
Prosecutorial Misconduct
not
do
so.
To
succeed
on
claim
of
prosecutorial
United States v.
In reviewing a
claim
of
prosecutorial
determine
whether
the
misconduct,
conduct
so
we
review
infected
the
the
claim
trial
to
with
exculpatory
evidence
to
the
grand
jury
is
similar
to
that
36,
44-46
(1992).
While
Witasick
seeks
to
distinguish
11
Williams,
we
find
his
attempts
unpersuasive.
The
Court
was
present
exculpatory
evidence
in
his
possession
find
no
support
in
Witasicks
claim
would
Id. at 52.
that
the
be
We
Citizens
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED
12