United States v. Cole, No. 11-1232 (8th Cir. 2013)
Annotate this CaseDefendant was convicted of conspiracy to commit mail and wire fraud and conspiracy to commit tax fraud. On appeal, the government challenged defendant's sentence as substantively unreasonable and defendant cross-appealed, challenging her convictions. The court concluded that there was sufficient evidence to prove that defendant knowingly and intentionally joined in an agreement to defraud Best Buy; the evidence was sufficient to prove that defendant willfully committed affirmative acts constituting tax evasion and that a tax deficiency resulted; the evidence was sufficient to sustain defendant's tax fraud conspiracy since the evidence showed that she knowingly and intentionally entered an agreement with her husband to evade taxes and that she took an overt act in furtherance of the agreement; the evidence at trial was not "materially different" from the facts in the indictment and, therefore, no variance occurred and the district court did not err in denying her motion for acquittal on that basis; the district court did not abuse its discretion in rejecting defendant's claim that the verdict was against the weight of the evidence; and the district court did not abuse its discretion in denying defendant a new trial based on admission of Government Exhibit 17. Accordingly, the court affirmed defendants convictions. In regards to defendant's sentence, the court remanded for the district court to provide a fuller explanation of the sentence.
Court Description: Criminal Case - conviction and sentence. Evidence was sufficient to prove Cole knowingly and intentionally joined in an agreement to defraud Best Buy and that she willfully committed affirmative acts constituting tax evasion and that a tax deficiency resulted. Evidence was sufficient to sustain tax fraud conspiracy. District court did not err in denying her motion for acquittal on claim there was a prejudicial variance in the evidence used on the tax evasion and tax fraud conspiracy charges because there was no variance. The district court did not abuse its discretion in rejecting Cole's claim that the verdict was against the weight of the evidence, as there was sufficient evidence Cole played a role in the conspiracy, and did not abuse its discretion in denying a new trial based on admission of a government exhibit. Because the district court's variance from a guideline range of 135 to 168 months imprisonment to three years probation when her coconspirators received 180 months and 90 months imprisonment represented a major departure, the district court's brief and contradictory explanation is insufficient to allow for meaningful appellate review of whether sentence is substantively unreasonable. Sentence is remanded for the district court to offer a fuller explanation for the sentence.
The court issued a subsequent related opinion or order on August 29, 2014.
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