US v. Hinton Huff, No. 09-5021 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5021 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HINTON HUFF, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior District Judge. (2:08-cr-00225-HCM-FBS-1) Submitted: July 14, 2010 Decided: July 28, 2010 Before KING, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. A. Aaron Aldridge, Lebanon, Ohio, for Appellant. Neil H. MacBride, United States Attorney, Alan M. Salsbury, Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Following a three-day jury trial, Hinton Huff, Jr., was found guilty of twenty-nine counts of willfully aiding and assisting in the preparation of false tax returns, in violation of 26 U.S.C. § 7206(2) (2006). months imprisonment. Huff was sentenced to fifteen For the reasons that follow, we affirm the district court s judgment. I. Sufficiency of the Government s Evidence Huff first asserts the Government presented insufficient evidence of his guilt, because it did not prove that he acted with another culpable participant. This argument fails under the express language of the statute of conviction, which imputes criminal liability to a tax preparer who prepares a false return, regardless of whether the taxpayer knows of or consents to the falsity. precisely the case here. on United States v. See 26 U.S.C. § 7206(2). This was To avoid this conclusion, Huff relies Searan, 259 F.3d 434 (6th Cir. 2001). However, the issue in Searan was whether an assistant to a tax preparer is criminally liable under § 7206(2). F.3d at 443-46. See Searan, 259 Thus, the Searan court s discussion of another actor s criminal liability is irrelevant given the facts of this case. 2 Huff next argues the Government failed to prove that he acted willfully, because evidence of his motive. the Government We disagree. did not present Under United States v. Pomponio, 429 U.S. 10, 12 (1976), a tax violation is willful if it is a voluntary, intentional violation of a known legal duty, and the Government need not prove any motive other than an intentional violation of that duty. Huff further argues that, because the Government did not prove a tax loss, it failed to show that Huff acted willfully. In addition to being legally irrelevant, this assertion is factually inaccurate, because an IRS agent testified that the falsified returns resulted in an aggregate tax loss of over $78,000. Finally, we reject Huff s contention that there was insufficient evidence to prove that he personally prepared the tax returns that were the subject of his indictment. The evidence at trial established that, in a pre-trial interview with an IRS agent, Huff admitted preparing the returns. Moreover, each of the witnesses testified that Huff prepared their taxes; the tax returns were signed by Huff; and two defense witnesses testified that Huff was the sole tax preparer in the office. This evidence support the jury s verdicts. 3 was more than sufficient to II. Sufficiency of the Indictment Huff argues his convictions should be reversed because the indictment failed to specify the criminal acts alleged or the items on each return that were falsely claimed. criminal defendant may challenge the Although a sufficiency of his indictment at any time, because Huff raises the issue for the first time on appeal, we liberally construe the indictment, and every intendment is then indulged in support of . . . United States v. Williams, 152 F.3d 294, 298 (4th sufficiency. Cir. 1998) (alteration in original) (internal quotation marks omitted). To withstand a vagueness challenge, an indictment must contain[] inform[] the a elements defendant of of the the offense charge charged against and which fairly he must defend, . . . enabl[ing] him to plead an acquittal or conviction in bar of future prosecutions for the same offense. United States v. Smith, 441 F.3d 254, 260-61 (4th Cir. 2006) (internal quotation marks omitted). An indictment that mirrors the language of the statutory charge and includes facts specific to the defendant s actions is constitutionally adequate. See Hamling v. United States, 418 U.S. 87, 117 (1974). The indictment here satisfies these requirements. addition to mirroring the statutory language of 26 In U.S.C. § 7206(2), the indictment also included a chart that delineated 4 the particular tax return that formed the basis for each count, the falsely claimed item on that return and its corresponding falsely claimed amount, the date the return was filed, and the taxpayer for whom it was prepared. obligation to provide a The Government was under no line-by-line recitation of all the falsifications within each allegedly falsified item. 1 III. Prosecutorial Misconduct Huff next argues his convictions should be reversed because the Assistant United States Attorney ( AUSA ) improperly vouched for the credibility of the Government s witnesses, and misstated the law pertaining to immunity agreements and the uses of Tax Form Schedule C. Because Huff did not object on these bases at trial, this court s review is for plain error. See United States v. Baptiste, 596 F.3d 214, 226 (4th Cir. 2010). To establish plain error, Huff must demonstrate there was error, it was plain, and that it affected his substantial rights. United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005). Even if Huff satisfies this difficult burden, this court will 1 We also reject Huff s contention that the indictment was flawed because it did not particularize the date each return was prepared. Where a particular date is not a substantive element of the crime charged, strict chronological specificity or accuracy is not required. Smith, 441 F.3d at 261 (internal quotation marks omitted). The particular date of the offense is simply not an element of § 7206(2). 5 not notice the error unless it seriously affects the fairness, integrity or public reputation of judicial proceedings. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (internal quotation marks and alteration omitted). Vouching generally occurs when the prosecutor s actions are such that a jury could reasonably believe that the prosecutor was indicating a personal belief in the credibility of the witness. United States v. Johnson, 587 F.3d 625, 632 (4th (internal Cir. 2009) quotation denied, 130 S. Ct. 2128 (2010). marks omitted), cert. We have carefully reviewed the AUSA s opening and closing statements and find nothing therein constitutes impermissible vouching. We further conclude the AUSA did not misstate the law relevant to immunity agreements or the use of Tax Form Schedule C as relevant to this case. IV. Reasonableness of Huff s Sentence Post-Booker, 2 this court reviews a sentence reasonableness, applying an abuse of discretion standard. for Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). both the 2 This review requires appellate consideration of procedural and substantive reasonableness United States v. Booker, 543 U.S. 220 (2005). 6 of a sentence. Gall, 552 U.S. at 51. In determining procedural reasonableness, this court considers whether the district court properly calculated the defendant s advisory Guidelines range, considered the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2010) factors, analyzed any arguments presented by the parties, and sufficiently explained the selected sentence. 51. Gall, 552 U.S. at If the court finds no significant procedural error, it next assesses the substantive reasonableness of the sentence, taking into account the extent of totality any of variance the from circumstances, including the the Guidelines range. United States v. Morace, 594 F.3d 340, 345-46 (4th Cir. 2010) (quoting Gall, 552 U.S. at 51). Huff first asserts the district court violated due process by prohibiting his wife from making a statement prior to the court court pronouncing allowed appropriate, Huff and sentence. to Huff calling one witness. present availed We disagree. whatever himself The evidence of this district he deemed opportunity, After hearing argument on sentencing, Huff asked the court to permit his wife to make a statement. point, evidence within its was province closed, to and decline we hold Huff s the court request. At that was See well United States v. Janati, 374 F.3d 263, 273 (4th Cir. 2004) (describing the district court s discretion 7 in managing things such as courtroom procedures and admission of evidence as particularly broad ). Huff also argues the district court s failure to consider the § 3553(a) sentencing factors renders his sentence procedurally and substantively unreasonable. Such a claim is more appropriately considered as a challenge to the procedural See United States v. Lynn, reasonableness of Huff s sentence. 592 F.3d 572, 575-76 (4th Cir. 2010). several § 3553(a) sentencing factors Counsel s reliance on to support variance preserved this issue for appellate review. a downward Id. at 578. Accordingly, our review is for an abuse of discretion. Id. at 581. The district court did not abuse its discretion in sentencing Huff. In granting counsel s request for a downward variance, the district court expressly adopted the primary (and strongest) reason counsel advanced to support the variance. Although we recognize that the court did not address, on the record, each and every other reason set forth by counsel, we conclude this does not render Huff s sentence procedurally flawed. See United States v. Boulware, 604 F.3d 832, 838-39 (4th Cir. 2010). We further conclude that Huff s variance sentence was substantively reasonable. Considering the totality of the circumstances surrounding Huff s crimes and his virtually non8 existent criminal history, the district court properly exercised its discretion to vary downward from the Guidelines range by approximately 29%, and amply justified that variance. See United States v. Seay, 553 F.3d 732, 742 (4th Cir.) (finding variance sentence that was a 68% increase above the Guidelines range reasonable, because the court had adequately explained the reasons for the variance), cert. denied, 130 S. Ct. 127 (2009). V. Ineffective Assistance of Counsel Finally, ineffective Huff asserts representation his during his attorney trial. provided Unless an attorney s ineffectiveness is conclusively apparent on the face of the record, ineffective assistance claims are not generally addressed on direct appeal. United States v. Benton, 523 F.3d 424, 435 (4th Cir.), cert. denied, 129 S. Ct. 490 (2008); United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (providing standard and noting that ineffective assistance of counsel claims generally should be raised by motion under 28 U.S.C.A. § 2255 (West Supp. 2010)). The record in this case falls far short of this exacting standard. VI. For the Conclusion foregoing convictions and sentence. reasons, we affirm Huff s Further, we deny as moot the pending 9 motions to expedite review and for bond pending appeal. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 10
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