Francis Tucker v. US, No. 12-1571 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1571 FRANCIS CLIFFORD TUCKER, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant - Appellee. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:08-cv-00105-FPS-JES) Submitted: October 16, 2012 Before DIAZ and Circuit Judge. FLOYD, Circuit Decided: Judges, and December 5, 2012 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Paul J. Harris, Wheeling, West Virginia, for Appellant. Kathryn Keneally, Assistant Attorney General, Jonathan S. Cohen, Karen G. Gregory, Tax Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; William J. Ihlenfeld, II, United States Attorney, Wheeling, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: In this civil action by federal taxpayer Francis C. Tucker (Tucker) against the United States of America (the government) for the alleged wrongful disclosures of his federal income tax return information to third parties, the district court entered final judgment in favor of the government. Tucker noted a timely appeal and challenges the judgment on various grounds. We affirm. I. Pursuant information to 26 U.S.C. generally government. § must 6103(a), be kept federal tax confidential return by the Return information includes: a taxpayer s identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments, whether the taxpayer s return was, is being, or will be examined or subject to other investigation or processing . . . . Id. § 6103(b)(2)(A). taxpayer is authorized Pursuant to to a bring § 7431(a)(1), civil action a federal against the government [i]f any officer or employee of the United States knowingly, or by reason of negligence, inspects or discloses any return or return information with respect to a violation of any provision of section 6103 . . . . - 2 - taxpayer Id. in Tucker s complaint alleged that two special agents of the United States Internal Revenue Service (the IRS), who were assisting in a federal grand jury investigation of his income tax liabilities unauthorized for tax disclosures individuals while investigation. years 2002 his return of interviewing them in through 2007, information made six with connection to the With one exception, the allegations in Tucker s complaint were adjudicated pursuant to a one-day bench trial. In the district court s scheduling order filed on August 23, 2010, deadline the for pleadings. this district the court parties to set file November any 22, motions 2010 the amend to as the Tucker did not move to amend his complaint prior to deadline. The pretrial order filed on April 11, 2011 listed Tucker s theories of liability as follows: (1) Special Agent to Brad Nickerson (Agent Nickerson) disclosed Tucker s former wife Cathy West that [Tucker] was going to jail, that he was evading his income tax and they were going to prove it, (J.A. 153); (2) Agent Nickerson and Special Agent Ryan Korner (Agent Korner) disclosed to Tucker s brother Tommy Tucker that [Tucker] was going to jail and they had him for tax evasion, (J.A. 154); (3) Agent Nickerson disclosed to Tucker s friend Gregory George that [Tucker] was [being investigated] for tax evasion and stated three times that [Tucker] was going to jail, id.; (4) Agent Nickerson disclosed to Tucker s former - 3 - brother-in-law Thomas West, Jr. that [Tucker] was being investigated for tax evasion and [Tucker] was going to go to jail, id.; (5) Agent Nickerson disclosed to Tucker s then wife Donetta LaRue that [Tucker] was probably going to go to jail, id.; and (6) either Agent Nickerson or Agent Korner told Tucker s son Gary Tucker that he didn t see any reason why he should go up the river for something somebody else did, id. Prior to trial, the district court granted summary judgment in favor of the government with respect to the alleged up the river comment on the basis that such comment, even if made, did not constitute a disclosure of Tucker s return information. The case proceeded allegations. As to a for the witnesses bench trial on the plaintiff, remaining Tucker called Agents Nickerson and Korner, Tommy Tucker, Cathy West, Thomas West, Donetta LaRue, and Gregory George. stand. As witnesses for the Tucker also took the defense, the government called Agents Nickerson and Korner. During their respective testimonies, Agents Nickerson and Korner denied making the disclosures alleged in the complaint, denied they explained heard that the disclosures. disclosure each IRS other trained Additionally, to a make third-party such them Agent witness disclosures, not Korner that to and make such testified that Tucker was under investigation for tax evasion would have been unhelpful because, - 4 - if anything, it would probably cause the third-party witness to shut down or clam up . . . . (J.A. 305). Tommy Tucker testified that during one of three interviews of him conducted by Agents Nickerson and Korner, one of these agents (he could not remember which one) told him brother Tucker was going to jail for tax evasion. that his Cathy West testified that when Agents Nickerson and Korner interviewed her, they more than indicated that . . . they wanted to [put Tucker in jail] and that they were investigating him for income tax evasion, although she could not remember their exact words. (J.A. 337). as of The end result of Thomas West s testimony was that, the Nickerson date or of trial, Korner he informed Tucker was going to jail. could him not state whether Agent the interview that during On the witness stand, Donetta LaRue could not recall the exact words the agents used, but she did not think they used the word jail. getting the impression serve some time. from them (J.A. 355). Rather, [she] recall[ed] that [Tucker] was going to Gregory George testified that at the start of his interview by Agents Nickerson and Korner [he] asked them what it was referring to, and [the agents] said, We [a]re here to talk about putting Mr. Tucker in jail. (J.A. 367). Based upon the district court s review of the evidence and resolution of factual disputes created - 5 - thereby, the district court concluded that Tucker failed to prove by a preponderance of the evidence that either Agent Nickerson or Agent Korner made any statements witnesses that during Tucker the was interviews going to to jail, the third-party Tucker was being investigated for income tax evasion, or any similar statements. Accordingly, the district court found in favor of the government with respect to Tucker s allegations tried before the court. II. On appeal, Tucker contends the district court erred by entering judgment in favor of the government with respect to his allegations of wrongful disclosure of return information under § 7431(a)(1), which the district court resolved pursuant to a bench trial. Tucker s contention is without merit. We review a judgment following a bench trial under a mixed standard of review; findings of fact are reviewed for error and conclusions of law are reviewed de novo. clear Roanoke Cement Co. v. Falk Corp., 413 F.3d 431, 433 (4th Cir. 2005). The law is well established that [a] finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). United Moreover, when a district court s factual finding in a bench trial is - 6 - based upon assessments of witness credibility, such finding is deserving of the highest degree of appellate deference. Evergreen Int l, S.A. v. Norfolk Dredging Co., 531 F.3d 302, 308 (4th Cir. 2008) (internal quotation marks omitted). Having reviewed the parties briefs and the record before us, we perceive court s judgment no basis with on which respect pursuant to a bench trial. to to overturn Tucker s the district allegations tried In this regard, we defer to the district court s findings of fact premised in large part on witness credibility Korner did Tucker in not determinations that disclose violation return of Agents information § 6103(a) as Nickerson with respect Tucker and to alleged. Accordingly, we affirm the judgment with respect to Tucker s allegations of wrongful disclosure of return information under § 7431(a)(1), which the district court resolved pursuant to a bench trial. III. Tucker contends the district court erred by granting summary judgment in favor of the government with respect to his allegation that Agent Korner told his son Gary Tucker that he didn t see any reason why he should - 7 - go up the river for something somebody else did. * the statement § 6103(b)(2)(A), (J.A. 154). constituted and thus is According to Tucker, return information actionable under § under 7431(a)(1). Tucker s contention is without merit. We review the grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 119 (4th Cir. 2011). genuine Summary judgment is appropriate only if there is no dispute as to any material fact entitled to judgment as a matter of law. and the movant is Id. We agree with the district court that the alleged up the river comment did not constitute a disclosure of Tucker s return information as defined in § 6103(b)(2)(A), and therefore, is not actionable under § 7431(a)(1). Accordingly, we affirm the judgment in favor of the government with respect to this statement. * Although there is confusion in the record below as to whether Tucker alleged Agent Nickerson or Agent Korner made the up the river comment to Gary Tucker, on appeal, Tucker identifies Agent Korner as such agent. Under the district court s reasoning in granting summary judgment, the identity of the agent is irrelevant. - 8 - IV. Tucker next contends the district court erred in excluding evidence from being presented at trial to prove that when Agents Nickerson and Korner introduced themselves to certain third party interviewees, sixteen in all, the agents stated that they were assisting the United investigation of Tucker. States Attorney in a grand jury Five of these third parties testified at trial, while the remaining eleven were listed in the pretrial order as individuals Tucker may call to testify at trial if the need arises . . . . (J.A. 141) (emphasis omitted). According to Tucker, had such evidence been admitted, he would have been entitled to amend his complaint to conform to such evidence, and thus, the district court erred when it denied his motion to this effect. Tucker s contentions are without merit. A district court is afforded wide discretion in determining the admissibility of evidence at trial, United States v. Abel, 469 U.S. 45, 54 (1984), and the district court s evidentiary determinations should not be overturned except under the most extraordinary of circumstances, United States v. Aramony, 88 F.3d 1369, omitted). evidence 1377 (4th Cir. 1996) (internal quotation marks Therefore, we review a district court s exclusion of proffered discretion standard. at trial under the deferential abuse of Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999). Moreover, whether or not a plaintiff - 9 - should be allowed to amend his complaint to conform to the evidence admitted at trial is a discretionary determination to be made review by for the district abuse of court, which discretion. determination Quillen v. we also International Playtex, Inc., 789 F.2d 1041 (4th Cir. 1986). As explained in its Findings of Fact and Conclusions of Law, filed March 29, 2012, the district court excluded Tucker s proffered Nickerson evidence and untimeliness. Korner regarding introduced the manner in themselves on which the Agents ground of In this regard, the district court specifically explained: During the bench trial, plaintiff attempted to submit evidence relating to certain issues, that is the IRS agents introduction of themselves to certain third-party witnesses which plaintiff asserted was in violation of 26 U.S.C. § 6103, namely that persons interviewed were told by the agents by way of introduction that Francis Tucker was under a grand jury investigation. The defendant objected to this testimony as being untimely. This Court decided to hear this testimony and then decide at a later date whether it should be considered as evidence in this civil action. This Court now finds that this evidence is untimely as those claims were never made in the complaint and the plaintiff never sought to amend his complaint to include these allegations. Moreover, the plaintiff never supplemented any responses to discovery requests by the defendant to include this information and these matters were never addressed at the pretrial conference or in the joint pretrial order. Accordingly, this evidence must be deemed untimely and will not be considered or admitted as evidence in this case. - 10 - (J.A. 771-72). As explained in its memorandum opinion and order denying Tucker s motion for leave to amend his complaint to conform to the evidence admitted at trial, the district court denied the motion on the ground that the government would be unfairly prejudiced if the motion were granted since the United States was effectively precluded from conducting any discovery regarding these allegations under the existing scheduling order which provided for discovery prior to trial. (J.A. 752-53). In this regard, the district court specifically explained: As previously noted by the Court in its ruling not permitting this evidence to be presented at trial, plaintiff Tucker did not make these allegations concerning the manner of introduction in the complaint, did not seek to amend the complaint, did not set forth these allegations in response to discovery, and did not include these matters at any pretrial conference or in the joint pretrial order. Not only is this information untimely, but the inclusion of this information at this point in the case would be unfairly prejudicial to the United States. As is noted by the United States, there are exceptions to the rules prohibiting improper return disclosures and the United States did not have an opportunity to adequately address those exceptions even though the United States did present some evidence at trial to demonstrate that it had met the requirements of § 6103(k)(6) allowing such disclosures. The United States submits that had it been aware of these allegations prior to trial, it could have conducted additional discovery on this issue in order to present trial testimony defending the assertions of plaintiff Tucker, including the presentation of evidence regarding a good faith defense under 26 U.S.C. § 7431(b)(1). (J.A. 751-52). - 11 - We find no abuse of discretion in the district court s decision to exclude Tucker s proffered evidence regarding the manner in which Agents Nickerson and Korner sought to introduce themselves to certain third-party witnesses. A fortiori, we find no abuse of discretion in the district court s denial of Tucker s motion to amend his complaint to conform it to such evidence. V. Having found no error in the proceedings below as contended by Tucker, we affirm the judgment in favor of the government in toto. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED - 12 -
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