13‐2876‐cr United States v. Gilmartin

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22nd day of March, two thousand seventeen.

PRESENT: DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges, COLLEEN McMAHON, Chief District Judge.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee, 13‐2876‐cr v.

DAVID GILMARTIN, Defendant‐Appellant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR DEFENDANT‐APPELLANT: David Gilmartin, pro se, Atwater, California.

* Chief Judge Colleen McMahon, of the United States District Court for the Southern District of New York, sitting by designation. FOR APPELLEE: Stanley J. Okula, Jr., Nanette L. Davis, Special Assistant United States Attorneys, Karl Metzner, Assistant United States Attorney, for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Cedarbaum, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant David Gilmartin was convicted after a jury trial of

corruptly endeavoring to impede the due administration of the Internal Revenue Laws,

in violation of

(a); tax evasion, in violation of

; failure to

file an income tax return, in violation of

; failure to pay taxes to the

Internal Revenue Service (ʺIRSʺ), in violation of

; and mail fraud, in

violation of

.

At trial, represented by counsel, Gilmartin conceded that he had not filed

tax returns or paid taxes. He argued instead that he did not possess the requisite

criminal intent for conviction because he held a good‐faith belief that the IRS was not

authorized to hold him liable for unpaid taxes. The district court excluded

documentary evidence that he offered to support his beliefs ‐‐ written works that

challenged the validity of the tax laws, excerpts of the Internal Revenue Code, and

instructions published by the IRS ‐‐ concluding that the evidence would likely confuse

2 the jury, but permitted Gilmartin to testify about the documents. After the parties

rested, the court instructed the jury that it had to unanimously agree on the specific

factual allegations that established the counts of obstruction, tax evasion, and mail

fraud. At sentencing, the court determined that Gilmartin was subject to a two‐level

enhancement for obstruction of justice because he had provided false testimony, but it

ultimately imposed a below‐Guidelines sentence of 48 monthsʹ imprisonment.

On appeal, Gilmartin, pro se, challenges (1) the district courtʹs evidentiary

ruling; (2) the sufficiency of the evidence of willfulness; (3) whether the jury

unanimously agreed on the specific factual allegations that established the counts of

obstruction, tax evasion, and mail fraud; (4) the lawfulness of his conviction because he

is not liable for taxes; and (5) the timeliness of the mail fraud charge. In an earlier brief

filed by counsel, before Gilmartin was permitted to proceed pro se, he also challenged

the propriety of the two‐level obstruction of justice enhancement.

I. Exclusion of documentary evidence

We review evidentiary rulings for abuse of discretion, reversing only for

manifest error. United States v. Miller,

(2d Cir. 2010). Under Federal

Rule of Evidence 403, a district court ʺmay exclude relevant evidence if its probative

value is substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.ʺ Fed. R. Evid. 403. The district court did

not abuse its discretion in excluding Gilmartinʹs documentary evidence, which included

3 argumentary materials regarding the ʺvoluntary natureʺ of filing tax returns and

excerpts from the Internal Revenue Code, as it had the potential to confuse the jury. See

United States v. Kraeger,

, 7‐8 (2d Cir. 1983) (per curiam); see also United States v.

Payne,

(10th Cir. 1992). Furthermore, although the documents were

excluded, the district court permitted Gilmartin to testify about the documents and the

basis of his understanding of the tax laws. We agree that the probative value of the

evidence did not substantially outweigh the danger of unfair prejudice or confusion.

II. Sufficiency of the Evidence

Gilmartin argues that the evidence was insufficient to establish the

requisite criminal intent for his convictions.1 ʺIt is well‐established that a defendant

challenging the sufficiency of the evidence bears a heavy burden.ʺ United States v.

Aguiar,

(2d Cir. 2013) (internal quotation marks and citation omitted).

When considering a sufficiency challenge, ʺwe view the evidence in the light most

favorable to the government, drawing all inferences in the governmentʹs favor and

deferring to the juryʹs assessments of the witnessesʹ credibility.ʺ

A jury verdict must

stand as long as ʺany rational trier of fact could have found the essential elements of the

1 For Counts Two, Three, and Four, tax evasion, failure to file a tax return, and failure to pay taxes, the government was required to prove willfulness. See United States v. Josephberg,

(2d Cir. 2009) (tax evasion); United States v. Hassebrock,

(7th Cir. 2011) (failure to file); United States v. McGill,

, 239‐40 (3d Cir. 1992) (failure to pay). For Count One, IRS obstruction, the government had to show that Gilmartin acted ʺcorruptly,ʺ or with ʺthe intent to secure an unlawful advantage or benefitʺ for himself or another. United States v. Marinello,

(2d Cir. 2016) (quoting United States v. Parse,

(2d Cir. 2015)). For Count Five, mail fraud, the government had to prove Gilmartinʹs specific intent to defraud the United States of federal taxes. See United States v. Parse,

(2d Cir. 2015). 4 crime beyond a reasonable doubt.ʺ

(quoting Jackson v. Virginia,

(1979)).

In the tax fraud context, willfulness is established when the government

shows (1) ʺthe law imposed a duty on the defendantʺ; (2) ʺthe defendant knew of [that]

dutyʺ; and (3) ʺ[the defendant] voluntarily and intentionally violated that duty.ʺ United

States v. Klausner,

, 62‐63 (2d Cir. 1996) (quoting Cheek v. United States,

(1991)). Willfulness may be established by circumstantial evidence.

at 62‐

63. We have previously determined that certain facts can support an inference that a

defendant willfully violated his duty to obey tax laws, including the defendantʹs prior

taxpaying record, United States v. Bok,

(2d Cir. 1998); educational

background, United States v. MacKenzie,

(2d Cir. 1985); and knowledge

of previous court rulings against the defendant or others who relied on the defendantʹs

theory of tax law, United States v. Schiff,

(2d Cir. 1986); United States v.

Ebner,

(2d Cir. 1986) (defendantsʹ continued claim of tax‐exempt

status after court issued judgment against them ʺwas strong proof to rebut [the]

contention that they did not knowingly do anything illegalʺ).

The government presented compelling evidence to establish Gilmartinʹs

intent to violate the Tax Code, secure an unlawful advantage for himself, and deprive

the IRS of taxes owed. The record is replete with evidence of Gilmartinʹs advanced

education level, history of filing valid tax returns, and knowledge of case law that

rejected his theory of tax liability. In particular, Gilmartin refused to file returns after a

5 New York State appellate court rejected his arguments and dismissed his appeal, which

belies the contention that he did not knowingly violate the law. Ebner,

.

Thus, the government provided sufficient evidence for a rational jury to conclude that

Gilmartin acted with the requisite intent.

Finally, Gilmartin may not rely on his purportedly good‐faith belief that

he was not required to pay taxes, as such a defense ʺencompasses misunderstanding of

the law, not disagreement with the law.ʺ Schiff,

. Claims regarding the

constitutionality of the Tax Code that ʺdo not arise from innocent mistakes caused by

the complexity of the [code]ʺ are wholly different, do not negate willfulness, and do not

provide a defense to criminal prosecution. Cheek, 498 U.S. at 205‐06.

III. Unanimity of Jury Findings

Gilmartin also challenges his conviction on the ground that the district

court did not require a special verdict form and, therefore, there is no proof that the jury

unanimously agreed on the specific allegations that established the counts of

obstruction, tax evasion, and mail fraud. We review this argument for plain error as it

was not raised below and find no such error here. United States v. Kozeny,

(2d Cir. 2011). Gilmartinʹs argument fails because the district court instructed the

jury that it had to unanimously agree on the specific allegations of the counts in

question, and a jury is assumed to have followed the instructions given to it by the

court. United States v. Jass,

(2d Cir. 2009).

6 IV. Tax Protestor Arguments

Gilmartinʹs argument that that his conviction should be overturned

because he was not liable for taxes is also unavailing. We have consistently rejected

these arguments, and they do not provide a basis for Gilmartin to challenge his

conviction. See, e.g., Ficalora v. C.I.R.,

, 87‐88 (2d Cir. 1984).

V. Timeliness of Mail Fraud Charge

Gilmartin asserts on appeal that he was charged with mail fraud more

than five years after his last allegedly fraudulent mailing. Gilmartin did not raise this

defense before the district court, thereby waiving his right to assert it on appeal. See

United States v. Walsh,

, 855‐56 (2d Cir. 1983).

VI. Sentencing Enhancement

We review a sentencing courtʹs application of the Sentencing Guidelines

de novo and its underlying factual findings with respect to sentencing for clear error.

United States v. Cossey,

(2d Cir. 2011). A defendant is subject to the two‐

level enhancement if he ʺwillfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice.ʺ U.S.S.G. § 3C1.1. The enhancement is

appropriate when a defendant gives ʺfalse testimony concerning a material matter with

the willful intent to provide false testimony.ʺ United States v. Dunnigan,

(1993).

Although Gilmartin, through his prior counsel, characterizes his

testimony as merely a frivolous legal position, Gilmartinʹs education, continued failure

7 to pay taxes despite repeated notice from the IRS regarding his obligations, and

knowledge of legal precedent rejecting his theories undermine his testimony that he

believed in good faith that he had no obligation to pay taxes. Accordingly, the district

courtʹs finding that Gilmartin gave false testimony regarding his understanding of his

obligation to pay taxes was not clearly erroneous.

We have considered all of Gilmartinʹs remaining arguments and find them

to be without merit. Accordingly, for the reasons stated above, we AFFIRM the

judgment of conviction.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

8